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In re Constitution Section 19(1) - Special reference by Allan Marat; In re Constitution Section 19(1) and 3(a) - Special reference by the National Parliament [2012] PGSC 20; SC1187 (21 May 2012)

SC1187


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCR 1 of 2012


Reference Pursuant to Constitution, Section 19 (1)
Reference by DR ALLAN MARAT, MP in his capacity as the Attorney - General and Principal Legal Adviser to the National Executive Council.
In the matter of Prime Minister and NEC Act 2002 Amendments and Reserve Powers of the Governor General.


SCR 2 of 2012


Reference by the National Parliament pursuant to Constitution, Section 19 (1) and (3) (a).


IN THE MATTER of:
Sections 104 (2)(d); 109, 110, 115,141 (a), 142(2) of the Constitution;
Prime Minister and National Executive Council (Amendment) Act 2011;
Prime Minister and National Executive Council (Amendment No 2) Act 2011.


Waigani: Injia CJ, Salika Dep. CJ, Sakora, Kirriwom & Gavara-Nanu JJ
2012: April 2, 3, 4, 5 & May 21.


CONSTITUTIONAL LAW – Constitution s. 19 (2) – Binding effect of the opinions of the Supreme Court in Supreme Court References – Doctrine of separation of powers – Constitution s. 99 (3) – Constitution the Supreme law – Constitution ss. 9; 10 and 11 – Supreme law making powers of the Parliament - Supreme Court has unlimited jurisdiction – Constitution s. 99 (2) (c ) - Supreme Court has inherent power – Constitution s. 155 (2) (b) and (4) – Constitution is Supreme over all three arms of the government – Scheme of the Constitution - Supreme Court Act (Ch No 37), ss 1 & 7.


CONSTITUTIONAL LAW – Constitution s. 19 (1) and (3) - Practice and Procedure – Constitutional References – Interpretation and application of Constitutional Law – Amendments to Prime Minister and Executive Council Act 2002 – Such amendments having retrospective effect; setting limit to duration of Acting Prime Minister and setting age limit of Prime Minister at 72 – Appointment of Prime Minister – Doctrine of res judicata – Doctrine of Separation of Powers - Constitution, ss38, 50, 141, 109, 110, 141, 142; Prime Minister and National Executive Council Act 201, ss 2, 3, 4 and 6.


CONSTITUTIONAL LAW – Constitution s. 86 – Justiciability of the advice given to the Head of State – Justiciability of the decisions by the Head of State – Whether the Head of State has discretion on advice by Parliament regarding election of the Prime Minister – Constitution s. 142 (2) – Scheme of the Constitution.


CONSTITUTIONAL LAW – Validity of decision by Parliament to rescind previous grant to Member of Parliament leave of absence from sitting of Parliament - Constitution, s 50, s 104 (2)(d) & s 135; Organic Law on National and Local-Level Government Elections, s 4, 228, 229.
CONSTITUTIONAL LAW – Constitution s. 153 (4) – Validity of executive acts – Constitutional safeguard and protection over executive acts – Actions taken by Ministers not open to challenge – Constitution s. 141 - Prime Minister occupying office without legal right – De facto Prime Minister – De facto government – Meaning of a de facto government.


PARLIAMENT – Legislative arm of Government – Independent from Executive and Judicial arms - Separation of Powers - Supreme law maker – Laws passed subject to the Constitution – Supremacy of the Constitution – Constitution, ss.99(2) and (3), 100, 138 & 158


JUDGMENTS AND ORDERS – Enforcement – Compliance with – Duty of all persons to obey without fail – Neither Parliament nor elected Members of Parliament, individually and collectively, are exempted from complying with Court Orders, Judgments, Decisions, Rulings or Opinions – Parliamentary privileges - Separation of powers do not apply – Misconception – Constitution, ss.155(6), 115 and 99(3).


Facts:


These special references are brought under s19 of the Constitution by the Attorney-General (SC Ref No 1 of 2012) and the National Parliament (SC Ref No 2 of 2012) respectively. They seek the Supreme Court's opinion on the interpretation and application of certain provisions of the Constitution. The validity of decisions in question include Parliament's decision made on 9th December to rescind its earlier decision to grant leave of absence to Sir Michael Somare for the May 2011 meeting of Parliament; Parliament's decision made on 12th December to enact the Prime Minister and National Executive Council (Amendment Act) 2011 which amended the Prime Minister and National Executive Council Act 2002; Parliament's decision made on 12th December to declare a vacancy in the office of the Prime Minister; Parliament's decision made on 12th December to re-elect Peter O'Neill as Prime Minister; the actions of the Governor - General Sir Michael Ogio taken on 13th December 2011 to recognize and give effect to the Supreme Court's decision given on 12th December 2011 invalidating the appointment of Peter O'Neill as Prime Minister on 2nd August 2011 and restoring Sir Michael as Prime Minister; the Speaker of Parliament and Acting Governor - General Jeffrey Nape's actions taken on 14th December to recognize Parliament's re-election of Peter O'Neill as Prime Minister; actions of the Governor-General Sir Michael Ogio in retracting his earlier recognition of the government of Prime Minister Sir Michael Somare on 13th December 2011 and recognizing the re-appointment of Peter O'Neill; and, Parliament's decision made on 21st December to enact the Prime Minister and National Executive Council (Amendment No 2 ) Act 2011.


Held:


(1) The Supreme Court's judgment and orders given under s 19 of the Constitution, on 12th December 2011, in SCR No 3 of 2011 Reference by East Sepik Provincial Executive (2011) SC1154, is confirmed; and, is binding on all persons including the parties in that reference and in these references.

(2) Parliament's decision made on 9th December 2011 to rescind leave of absence granted to Sir Michael Somare for the May meeting is inconsistent with s50 of the Constitution and s 11, s 19, s 155 (6) and s 157 of the Constitution; and therefore declared unconstitutional, invalid and of no effect.

(3) The Prime Minister and National Executive Council (Amendment) Act 2011 passed by the Parliament on 12 December 2011 and certified by the Speaker is inconsistent with s 38 and s 50 of the Constitution and declared unconstitutional, invalid and of no effect.

(4) The Prime Minister and National Executive Council (Amendment No 2 ) Act 2011 passed by the Parliament on 21 December 2011 and certified by the Speaker is inconsistent with s 11, s 19, s 38, s 50, s 155 (6) and s 157 of the Constitution and therefore declared unconstitutional, invalid and of no effect.

(5) The election of Peter O'Neill as Prime Minister on 12th December 2011 and his subsequent confirmation by the Speaker of Parliament the Hon Jeffrey Nape, in his capacity as Acting Governor-General, on 14th December 2011 are inconsistent with s 142 (1) and (2) of the Constitution as interpreted and applied in SCR No 3 of 2011 Reference by East Sepik Provincial Executive (2011) SC1154, and therefore, declared unconstitutional, invalid and of no effect whatsoever.

(6) That Prime Minister Sir Michael Somare shall be accorded full privileges and benefits as Prime Minister and Member of Parliament for East Sepik Provincial seat, effective from 2nd August 2011.

(7) Pursuant to s 153 (4) of the Constitution, and subject to the Constitution generally, the bona fide decisions and actions made and implemented by the de facto government of Peter O'Neill as Prime Minister and any of those of ministers appointed by him, between 2nd August 2011 and 20th May 2012, are not open to challenge.

(8) That at all material times, Sir Michael Somare was and is the member for the East Sepik Provincial seat; and, the legitimate Prime Minister of Papua New Guinea until the writs for the 2012 National elections are returned and a new Prime Minister is elected in the first sitting of the next Parliament pursuant to s 142 of the Constitution.

(9) Pursuant to s 11, s19 (2), and s 155 (6) of the Constitution, it is the duty of all persons, including the Governor-General, and the Speaker of Parliament and all other members of the executive government officers, bodies and agencies, so far as is within their respective lawful powers; to give full effect to and comply with the binding opinions and orders issued in SCR No 3 of 2011 and SCR No 1 and 2 of 2012.

Cases Cited:


Papua New Guinea Cases cited in the judgment


Application by Gabriel Dusava (1998) SC 581
Avia Aihi v The State [1981] PNGLR 81
Acting Public Prosecutor v Aumane & ors [1980] PNGLR 510
Burns Philp (PNG) Ltd v Independent State of Papua New Guinea (1989) N769
Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47
Haiveta v Wingti (No 3) [1994] PNGLR 197
Herman Gawi v PNG Ready Mixed Concrete (1983) (Unnumbered)
In the Matter Pursuant to Section 18(1) of The Constitution, Southern Highlands Provincial Government v Sir Michael T Somare; Sir Matiabe Yuwi v Sir Michael T Somare (2007) SC854
James Mopio v Speaker of National Parliament [1977] PNGLR 420
JA Constructions v Ipisa Wanega (2010) SC1069
Kenneth Susuve and Heni Pauta (No.2) [1982] Unreported National Court Judgment N337
Kila Wari v Gabriel Ramoi and Kingsford Dibela [1986] PNGLR 112
Kimbe Bakery v Jalatang [1993] N1274
Mark Ekepa v William Gaupe (2004) N2694
Minister for Lands v Frame [1980] PNGLR 438
Milne Bay Provincial Government v Roy Evara and Anor [1981] PNGLR 63
Monom Yamba v Mait Geru [1975] PNGLR 322
Ome Ome Forests Ltd v Ray Cheong [2002] N2289
Peter Aigilo v The State (No.1) [2001] N2103
Peter Luga v Richard Sikani, Commissioner for CS (2002) N2285
Pius Mark v Korali Iki [1995] PNGLR 116
Polem Enterprises Ltd v Attorney-General of PNG (2008) SC911
Re Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 342
Re Michael T. Somare [1981] PNGLR 265
Ref No. 1 of 1997 by Principal Legal Adviser [1998] PNGLR 453
Reva v Mase (1980) N260
Re Internal Security Act; Reference by the Ombudsman Commission [1994] PNGLR 341
Re Criminal Circuits in Eastern Highlands and Simbu Provinces [1990] PNGLR 82
Review Pursuant to Constitution, Section 155(2)(B); Application by Herman Joseph Leahy (2006) SC855
Re Criminal Circuits in Eastern Highlands and Simbu Provinces [1990] PNGLR 82
Reference by Morobe Provincial Government; re Election of Governor General (2011) SC1154
Reference by the Attorney-General and Principal Legal Adviser to the National Executive (2010) SC1078 SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314
Re Reference by Ken Norae Mondiai (2010) SC1087
Ref No. 1 of 1997 by Principal Legal Adviser [1998] PNGLR 453
Re Sittings Days of Parliament and Regulatory Powers of Parliament (2002) SC 722
Re Yabo Sabo [1995] PNGLR 13
Simon Mali v The State (2002) SC690
Sir Julius Chan v The Ombudsman Commission of Papua New Guinea (1998) SC557
SCR No 2 of 1981; Re s 19 of the Constitution [1981] PNGLR 518
SCR No 3 of 1982; Re s57 and s155 (4) of the Constitution [1982] PNGLR 405
SCR No 2 of 1987; Reference by Robert Henry Seeto Member for West Coast Namatanai in the New Ireland Provincial Assembly and Former Premier [1987] PNGLR 31
Niugini-Lloyds International Bank v Bernard Sakora [1987] PNGLR 275
SCR No 2 of 1981; Re Electoral Boundaries [1981] PNGLR 518
Soso Tomu v Independent State of PNG (2002) N2190
Special Reference by Fly River Provincial Executive, re OLIPAC (2010) SC 1057
Special Reference by the Ombudsman Commission (2010) SC1027
Special Reference by Morobe Provincial Executive; re Election of Governor General (2010) SC 1085
Special Reference by Morobe Provincial Executive (2010) SC1089
Special Reference by East Sepik Provincial Executive (2011) SC1154
SCR No 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122
SCR No 2 of 1981; Re s 19 (1)(f) of the Criminal Code [1982] PNGLR150
SCR No 4 of 2001 Re Validity of National Capital District Commission Act (2001) SC678
State v NTN Pty Ltd [1992] PNGLR 1
The Director –Division of District Administration and Others v Sacred Heart Mission (New Britain) Property Trust [1974] PNGLR 312
The State v Manorburn Earthmoving Ltd (2003) SC 716
The State v Mogo Wonom [1975] PNGLR 311
Tolom Abai v The State (1995) N1402
Yama v BSP; Smugglers Inn v Christopher Burt; Yakka Enterprises v Peter Yama (2008) SC921
Yap v Tan & Ors [1987] PNGLR 227


Overseas cases cited in the Judgment


Hadkinson v Hadkinson [1952] 2 All ER 567
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) ALR 93
Pardo v Birmingham [1869] UKLawRpCh 29; (1870) L.R. 4 Ch. App 735
Re Chapman [1890] 1 Ch. 323
R (Jackson) v The Attorney-General [2005] UKHL 56; [2006] 1 AC 262
Smith v Chandler [1901] UKLawRpAC 17; [1901] A.C. 297
The Commissioners for Special Purposes of Income Tax v John Frederick Pemsel [1891] AC 531


PNG Statutes & Subordinate legislations referred to


Constitution of the Independent State of Papua New Guinea
Interpretation Act, Chapter No. 2
Organic Law on National and Local-Level Government Elections
Prime Minister and National Executive Council Act, 2002
Prime Minister and National Executive Council (Amendment Act) 2011
Prime Minister and National Executive Council (Amendment No 2) Act 2011
Public Health Act, Chapter No. 226
Supreme Court Act, Chapter No37
Underlying Law Act 2000


Overseas Statutes Referred to


Acts Interpretation Act, 1901 (Cth of Australia)
Constitution of Republic of Namibia


PNG Books, articles, etc referred to
C.P.C. Final Report Part I
Parliamentary Hansard of 9th, 12th and 14th December 2011


Overseas Books and Articles referred to


A Concise Law Dictionary Fifth ed
Black's Law Dictionary Seventh ed
Constitutional Supremacy or Parliamentary sovereignty: Through the back door; Francis X Bangamwabo - SAFLii
Craies on Statute Law, 7th ed
Francis Bennion, Statutory Interpretation, 2nd ed
Halsbury's Laws of Australia
Lord Hope of Craighead, 'Sovereignty in Question – A view from the Bench", paper presented on 28 June 2011 at WG Hart Legal Workshop
Oxford Dictionary of Law (7th ed)
The Australian Oxford Dictionary
The Doctrine of Res Judicata by Spencer-Bower and Turner 1969 2nd ed
Wikipedia Encyclopedia, "Voting Ages around the World"


Counsel:
T Twivey, for Dr Allan Marat & the Speaker of Parliament (Referrer)
P Donigi, for the Parliament (Referrer)
M Wilson with A Davis, for the Hon Peter O'Neill MP (Intervener)
L Henao, for Hon Jamie Maxton - Graham MP & Hon Sam Basil MP (Interveners)
D Coluquon Kerr with J Wohiunangu & K Kua, for the Hon Sir Michael Somare & the Hon Sir Arnold Amet (Interveners)
F Griffin with P Tabuchi, for Hon Belden Namah, MP (Intervener)
I Molloy with R Pato, for the East Sepik Provincial Executive (Intervener)
C Mende, for Hon Marus Deputy Speaker of Parliament (Intervener)


21 May, 2012


1. INJIA, CJ: These special references are brought under s 19 of the Constitution by the Attorney - General (SC Ref No 1 of 2012) and the National Parliament (SC Ref No 2 of 2012) respectively. They seek the Supreme Court's opinion on the interpretation and application of certain provisions of the Constitution to certain decisions made by the National Parliament on 9th, 12th and 21st of December 2011; and the actions of the Head of State to formalize those decisions. They relate to Parliament's decision made on 9th December to rescind its earlier decision to grant leave of absence to Sir Michael Somare (Sir Michael) for the May 2011 meeting of Parliament; Parliament's decision made on 12th December to enact the Prime Minister and National Executive Council (Amendment Act) 2011 (First amendment) which amended the Prime Minister and National Executive Council Act 2002 (hereinafter referred to as the principal Act); Parliament's decision made on 12th December to declare a vacancy in the office of the Prime Minister; Parliament's decision made on 12th December to re-elect Peter O'Neill as Prime Minister; the actions of the Governor - General Sir Michael Ogio taken on 13 December 2011 to recognize and give effect to the Supreme Court's decision given on 12th December 2011 invalidating the appointment of Peter O'Neill as Prime Minister on 2nd August 2011 and restoring Sir Michael as Prime Minister; the Speaker of Parliament and Acting - Governor General Jeffrey Nape's actions taken on 14th December to recognize Parliament's re-election of Peter O'Neill as Prime Minister; actions of the Governor-General Sir Michael Ogio in retracting his earlier recognition of the government of Prime Minister Sir Michael Somare on 13th December 2011 and recognizing the re-appointment of Peter O'Neill; and, Parliament's decision made on 21st December to enact the Prime Minister and National Executive Council (Amendment No 2 ) Act 2011. The Constitutional validity of those and other related decisions and actions are in question in these references.


  1. There are twenty-nine questions in SCR No 1 of 2012 and four questions in SCR No 2 of 2012 which raise similar issues. For this reason they were heard together. The questions are reproduced in Appendix A hereto.
  2. There are multiple questions and multiple parties who took common positions on many of the questions. For ease of reference, I refer to the Referrers and those interveners supporting the referrers as the case for the affirmative. The interveners who support the referrers on most questions are the Hon Peter O'Neill, the Hon Jeffrey Nape who is Speaker of Parliament, the Deputy Speaker of Parliament, the Hon Jamie Maxton- Graham and the Hon Sam Basil. The Hon Belden Namah took no position. The case for the negative was represented by the Hon Sir Michael Somare, Sir Arnold Amet and the East Sepik Provincial Executive.
  3. Ms Twivey of counsel for the Referrer (Dr Marat) conveniently grouped the questions into six topics (topics 1-6) which I adopt as a guide to develop eleven (11) main topics under which I deal with the questions and related issues. I list them in the order that I wish to deal with, as follows:

(6) Validity of Prime Minister and National Executive Council

(Amendment No 2) Act 2011;


(7) Validity of election of Prime Minister on 12 December2011;


(8) Validity of appointment by the Head of State of Peter O'Neill as Prime Minister on 14 December 2011 under s 142 (2) of the Constitution;


(9) Effect of this Court's judgment in SCR No 3 of 2011 delivered on 12 December 2011 on Parliament's decision referred to in topic (1) – (8) above, inclusive;


(10) Conduct of certain parties and their counsel in SCR No 3 of 2011 and in SCR No 1 & 2 of 2012;


(11) Judgment, Declarations and orders.
  1. The reference questions are linked to the reference questions determined by this Court in SCR No 3 of 2011: see Special Reference by East Sepik Provincial Executive (2011) SC 1154. The main parties in both cases are the same. The timing of Parliament's decisions from 9th December referred to coincided with the timing of this Court's decision initially scheduled for 9th December 2011 but delivered on 12 December 2011. In my view, many of the arguments on important matters raised before us in these references are similar to or a re-agitation of arguments made by the parties and determined in SCR No 3 of 2011. For this reason, a consideration of the issues in these references will necessarily involve recourse to this Court's judgment in SCR No 3 of 2011. This bench which is comprised of the same judges that determined SCR No 3 of 2011, is in an ideal position to appreciate and deal with the issues in the present references.
  2. The proceedings in SCR No 1 & 2 of 2012 were filed in January 2012. It is generally understood that the threshold issue in these references is one of legitimacy of the current government of Prime Minister Peter O'Neill. At the commencement of the hearing, a belated application was made by counsel for Dr Marat supported by counsel for the Speaker of Parliament and Mr Peter O'Neill, seeking leave to make an application under the slip rule principle to reopen and review this Court's decision in SCR No 3 of 2011. Leave was refused. Therefore, this Court's judgment in SCR No 3 of 2011 given on 12 December 2012 still remains in force to this day.
  3. The referrers contested the composition of the judges for this bench to hear the references, in respect of myself and Justice Kirriwom. Dr Marat moved separate applications for our recusal from these proceedings. In accordance with the Court's established practice, it fell upon each of us to make our own decisions on the applications, which we did, dismissing the applications for reasons we each gave. I reproduce an edited version of my written ruling which I read in Court: Appendix B. The main variation to my ruling is the inclusion of Constitution, s160 (2) and s 163 (2)), which, apart from s 37 (2) of the Constitution, vests inherent power in the Supreme Court and the National Court to punish for contempt of Court.
  4. The reference questions are based on real facts. The practice for reception of evidence and facts in Constitutional references are canvassed in Special Reference by Fly River Provincial Executive, re OLIPPAC (2010) SC 1057.
  5. The facts are derived from various affidavits and material filed by the parties. Some of those facts are undisputed and parties reduced them into a Statement of Agreed Facts (Statement) which is before us. I reproduce the Statement in Appendix C. There are twenty-four statements of facts to which I make specific reference hereunder.
  6. The Statement of agreed facts present a disjointed story of the events that gave rise to those facts. The facts must tell the full story as far as the rules and principles concerning reception of facts in a court of law permit. I consider that this Court's task of interpreting and applying provisions of the Constitution in question to the circumstances at hand would not be fully discharged if we were confined to the facts chosen and submitted to us in the Statement. By adopting a broader approach to the reception of facts and circumstances which permeate the issues in these references, this Court is not doing anything unthinkable or out of procedure. It is seeking to discharge its constitutional mandate to interpret and apply the Constitutional Law provisions in question in a "fair and liberal manner"; and, in such a manner that the Constitution, which is a living document, "speak from time to time": Constitution, Sch. 1.4 & 1.5.
  7. For this reason, I have had recourse to those events which I consider to be of common knowledge to this Court and the parties, in elucidating some non-contentious facts and circumstances. Much of the additional non-contentious facts are derived from the affidavits and Court documents filed in these references. Others are matters within the knowledge of the Court and the parties through the conduct of these proceedings in Court and Court proceedings in SCR No 3 of 2011, Reference by East Sepik Provincial Executive. Much of the facts on issues common to that reference and the present references were determined in SCR No 3 of 2011 and those are found in the published judgment in that case. The judges and the main parties in these proceedings and in SCR No 3 of 2011 are the same and facts relating to the circumstances pertaining to the conduct of both proceedings are well within our knowledge. Other non-contentious facts are derived from matters of public knowledge of political events of constitutional significance that were widely reported in the public media.
  8. Prior to 2nd August 2011, Sir Michael was the incumbent Prime Minister of Papua New Guinea. In early 2011, he fell ill and was admitted to a hospital in Singapore for medical treatment that caused his absence from the country from April, May, June and July 2011. He returned to the country in August and attended the September meetings of Parliament.
  9. In the period of his absence, the Hon Sam Abal who was Deputy Prime Minister was Acting Prime Minister.
  10. During the May 2011 meeting, Parliament on 17th May passed a motion granting Sir Michael leave of absence for the May meeting. During the June meeting, no motion was introduced in Parliament seeking further leave of absence for Sir Michael. During the August meeting of Parliament in 2011, no motion was introduced in Parliament seeking further leave of absence for Sir Michael. Sir Michael was absent from Parliament during three consecutive meetings of Parliament being the May, June and August 2011 meetings. On 2nd August 2011 Parliament passed a motion that pursuant to Section 142 (2) of the Constitution, Schedule 1.10 (3) of the Constitution and the inherent powers of the Parliament, there was a vacancy in the office of the Prime Minister. On 2nd August 2011, Peter O'Neill was elected Prime Minister on a vote of 70 to 24 members. On 2nd August 2011, the Governor-General Sir Michael Ogio appointed Peter O' Neill to be Prime Minister, Belden Namah as Deputy Prime Minister and appointed 11 new Ministers, replacing most of the Ministers under Sir Michael's government. The appointments and dismissals were published in National Gazette no G205 on 3rd August 2011. (Statement No. 1-7).
  11. In August 2011, the East Sepik Provincial Executive filed a Supreme Court reference under s 19 of the Constitution challenging the validity of Parliament's decision of 2nd August 2011. (Statement No. 9). Questions included the validity of Parliament's decision to declare a vacancy in the office of the Prime Minister, the appointment of Peter O'Neill as Prime Minister, and the Speaker's ruling made on 6th September 2011, to disqualify Sir Michael as member for East Sepik Provincial seat in the Parliament.
  12. On 31st October 2011, we completed hearing arguments in SCR No 3 of 2011. At the conclusion of the hearing, we announced that we would give our decision on Friday 9th December, 2011 at 9:30 am. (Statement No. 9).
  13. On 9th December 2011, we were not ready with our decision and deferred it to Monday 12th December 2011 at 9:30 am.
  14. Unknown to this Court, Parliament convened on 9th December 2011 at 10:00 am. The first business of the meeting was the leave of absence granted to Sir Michael for the May 2011 sitting. Parliament by resolution rescinded its May decision. The Speaker declared a vacancy in the East Sepik Provincial seat held by Sir Michael. The decision was formalized later that day, by the Governor –General, by notice published in National Gazette No G363 on the same day. (Statement, No. 10 -11).
  15. The Hansard for 9th December 2011 records the events in Parliament on the matter as follows. Deputy Prime Minister, the Hon Belden Namah first acknowledged the attendance of Members of Parliament (MPs) "irrespective of the Court decision that is going to be handed down today" instead of attending at the Courthouse to receive the judgment, because, "the Courthouse belongs to the lawyers". He then moved a motion that Parliament rescind its leave of absence granted to Sir Michael for the May meeting, for the reason that Sir Michael had suffered from an aortic valve disease for 10-15 years for which he received life threatening heart surgery in Singapore; a fact that was not disclosed to Parliament when it granted the leave of absence. The motion was agreed to on the voices. The Speaker then made the following ruling:

" The Honourable (sic) since the Motion has been passed, to rescind the

decision of this Honourable Parliament to grant Leave of Absence to the

Member for East Sepik Provincial, Honourable Sir Michael Thomas Somare for the May Meeting of Parliament, Honourable Members under Section 142 2 (d) of the Constitution (sic) it provides a seat of a member become vacant if he is absent without a Leave of Parliament during the whole of three (3) consecutive Meetings of Parliament unless Parliament decided to waive this rule upon satisfactory reasons being given, since the Motion had been passed, Rescinding the Leave Granted to the Honourable Member for East Sepik Provincial on 17th May 2011 Meeting, which renders him absent for the entire May Meetings of Parliament.


Further the Honourable Member has also been absent for the entire June and August Meetings of Parliament, which means he has effectively been absent from Parliament for the whole of three consecutive Meetings of Parliament.


I therefore, rule and declare that the seat of Parliament for East Sepik Provincial has become vacant." (my emphasis)


  1. On Monday 12th December, 2011at 9:30 am, we were not ready to give our decision and deferred it to 2: 00 pm. The Court convened shortly after 2:00 pm. The Court took several hours to deliver its judgment, with each judge giving an oral summary of our written judgments. The Court, by majority decision found the election of Peter O'Neill as Prime Minister on 2nd August 2011 unconstitutional and invalid; and, restored Sir Michael to office as Prime Minister. The judgment of the Court being in accordance with the opinion of the majority, the Court published, in Court, sealed orders that were signed by all judges. The judgment took effect as from that late afternoon at around 6:00 pm or shortly thereafter. Amongst the lawyers who attended Court to receive the judgment, the lawyers for the National Parliament and its Speaker were in attendance in Court and received the Court's published opinion and sealed copy of the Court orders. The Court adjourned shortly after 6:00 pm. Parliament received its copy of the judgment and orders on 13th December 2011. (Statement No. 9,14, 15, 16 & 17).
  2. Unknown to the Supreme Court, Parliament commenced its sitting on Monday 12th December 2011 at 11:05 am. The first business of Parliament was the enactment of the first amendment to the Prime Minister and NEC Act 2002. Parliament was adjourned to 2: 00 pm. The Speaker certified the first amendment on the same day.( Statement No. 12 and 13). The time in the day the Speaker certified the first amendment is unknown.
  3. When Parliament resumed at 2:00pm, debate on the budget continued. In the course of the debate, the Speaker interrupted Parliament to announce the Supreme Court's decision in SCR No 3 of 2011 which had just been handed down; then declared a vacancy in the office of the Prime Minister and conducted an election which resulted in the re-appointment of Peter O'Neill as Prime Minister. The pertinent excerpts of the Hansard shows the proceedings as follows:

" Honourable Members, I have just been informed of the decision of the Supreme Court regarding the East Sepik Provincial Government Supreme Court Reference Honourable members, the decision states that there is no vacancy in the East Sepik Provincial Seat and the former Prime Minister remains as Prime Minister.

However Parliament has made two decisions namely:


(1) When this Parliament passed a motion to pronounce the vacancy in the East Sepik Provincial Seat in 9 December 2011 and the gazettal of this decision renders the Prime Minister's post vacant.

(2) The passing of the amendment to the Prime Minister and NEC Act today further gives the effect that Sir Michael Somare has also vacated the Prime Minister's Office even though we have transitional provisions covering this government.

However, to address the Supreme Court's decision and lay all uncertainty to rest, I would want to see this Parliament with an absolute majority to deal with this Supreme Court decision once and for all.


Honourable Members, there is a vacancy so I call for nominations from the Floor.


NOMINAT ION AND ELECTION OF NEW PRIME MINISTER


Mr JAMIE MAXTONE GRAHAM (Anglimb-South Waghi) – I nominate the Member for Ialibu-Pangia as the Candidate for Prime Minister


Mr SAM ABAL (SIC) – I second the motion and move that the nomination be closed.

Motion agreed to.


The Parliament voted the Speaker (Mr Jeffrey Nape) in the Chair.

37/09

AYES - 60

NOES - 0


Mr SPEAKER – Mr Peter O'Neill is declared Prime Minister-elect of the Independent State of Papua New Guinea. Honourable Peter O'Neill you have the necessary support.


Honourable Member for Ialibu-Pangia you are now elected the Prime Minister of the Independent State of Papua New Guinea.


Honourable Members, the Prime Minister-elect will attend to the Government House for the swearing in ceremony and therefore I suspend Parliament until the ringing of the bells


Sitting suspended at 6:28pm." (my emphasis)


  1. On the evening of 12th December 2011, Sir Michael and Peter O'Neill visited the Government House for the official swearing-in by the Governor-General Sir Michael Ogio. Sir Michael Ogio did not make a decision immediately that evening.
  2. On 13th December 2011, Sir Michael Ogio recognized Sir Michael Somare as Prime Minister and formalized his cabinets' decision to appoint new ministers. The instruments were published in the National Gazette on the same day.
  3. On the same day, in the morning of 13th December 2011, a visit by Mr O'Neill and his team of MPs to Government House was refused by government house staff with the assistance of policemen guarding government house. The O'Neill team left government house but not without a confrontation with security personnel and a sit in protest, which almost turned nasty and violent. The confrontation was televised on National Television.
  4. On the same day, the O'Neill team returned to Parliament house. The Speaker convened a meeting of the house. The Speaker confirmed Peter O'Neill's re-appointment. Parliament then passed the following resolution:

"That the whole Court Proceedings relating to the East Sepik Provincial Executive Reference which includes cases against, Honourable Jeffrey Nape, CMG; Speaker of the Parliament, Honourable Peter O'Neill, Prime Minister, Honourable Belden Namah, Deputy Prime Minister, Honourable Dr Allan Marat and the Minister for National Planning Honourable Sam Basil are now covered under Section 115 of the Constitution and all its sub-sections to 129 relating to Parliamentary Privilege".


  1. On Wednesday 14th December 2011, Parliament resumed its sitting. It resolved to suspend the Governor-General Sir Michael Ogio. Speaker Jeffrey Nape left the chair to his deputy to take charge of the proceedings; later re-entered Parliament in his capacity as Acting - Governor-General escorted by police officers and proceeded to administer the oath of office to Peter O'Neill as Prime Minister. The proceedings in the floor of Parliament were televised on National Television. (Statement, No. 14).
  2. On 19th December 2011, Parliament lifted Sir Michael Ogio's suspension, followed by a public statement issued by Sir Michael Ogio that the Head of State recognized Peter O'Neill as Prime Minister. Since then Sir Michael and Peter O'Neill both claimed to be the legitimate Prime Minister of Papua New Guinea. Unlike Sir Michael's camp, Peter O'Neill's camp was in effective control of government functions; its position enhanced by a majority of MPs that supported him. But the controversy was far from over. At one stage Sir Michael and his team entered Parliament when it was in session and demanded the Speaker to allocate him his rightful seat.
  3. On 21st December 2011, Parliament passed the second amendment. Under this amendment, Parliament prescribed an age limit of 72 for a Member of Parliament to hold the position of Prime Minister. The amendment ruled out Sir Michael from holding the position of Prime Minister. The amendment then validated the actions of Peter O'Neill as Prime Minister and those of his government since 2nd August 2011. (Statement No 23 and 24).
  4. The controversy continued into the new year. In January 2012, Dr Allan Marat (who is the Attorney - General in the Peter O'Neill camp) and Parliament filed these two references, asking this Court to determine the legitimacy issue. The controversy remains unresolved to this day; and, only a binding decision from this Court under s 19 of the Constitution, it is expected by many, will resolve the issue before the nation goes to the polls in the general elections in June 2012.
  5. Whilst the interpretation that this Court ascribe to various provisions of the Constitution and their application to the statutory enactments in question are matters of law that will apply from time to time, the application of those legal principles to the circumstances of the case in these references will determine the legitimacy of the current government of Peter O'Neill. The issue of writs for the 2012 general elections was originally scheduled for 27th April 2012. The issue of writs were delayed by three weeks. On 18th May 2012, the Governor-General issued the writs. The writs are scheduled to be returned on 21st July 2012 and a new Prime Minister will be appointed by Parliament at its first sitting, to be held in late July or early August. Whilst Parliament conducted its last meeting on 15th April 2012; and Parliament was dissolved upon the issue of the writs; for continuity purposes, the MPs of the current Parliament will remain on the payroll until the writs are returned on 21st July 2011; and, the ministers of the current government including Prime Minister Peter O'Neill will remain as ministers, until a new Prime Minister is appointed (Constitution, ss 104 (2)(b), s 141 (a), and 147 (1)); subject of course to the issue of legitimacy of his appointment as Prime Minister determined by this Court in these references. If this Court rules in his favour, he and his executive government will remain in office until a new Prime Minister is appointed in the first sitting of Parliament after the return of the writs. If the issue is determined in favour of Sir Michael Somare, Peter O'Neill's appointment will be invalidated and Sir Michael will assume office as Prime Minister until a new Prime Minister is elected by Parliament after the return of the writs. Should this Court rule in favour of Peter O'Neill as Prime Minister, there will be no need for transitional arrangements. Should this Court rule in favor of Sir Michael as Prime Minister, the transitional arrangements can be easily accommodated because it will largely be one of "change of the old guard" at the Parliamentary Executive level. In the election period when the nation goes to the polls, the executive government is regarded as a caretaker government and no one expects the executive government under the leadership of either Sir Michael or Peter O'Neill to make any important policy, executive or administrative decisions in the short period. Ultimately, the issue of legitimacy of the current government of Peter O'Neill will be of no relevance after the return of the writs and the appointment of a new Prime Minister; hence the need for this Court to determine the issue of legitimacy and related issues before the return of the writs is imperative.
  6. The timing of this decision is dictated purely by three cardinal principles that underpin judicial decision-making - that justice delayed is justice denied; justice must not only be done but seen to be done; and, by doing justice through upholding of the Constitution, justice must be done by us judges without fear or favour of political outcomes or consequences. In my view, it is most unfortunate that this Court has been bogged down in a time-consuming and highly litigious exercise in what is clearly constitutional reference questions posed in SCR No 3 of 2011 and SCR No 1 & 2 of 2012, both of which should have taken a short time to hear and decide. Even when this Court is poised to deliver its decision in SCR No 1 & 2 of 2012, some parties have filed applications seeking orders that would further delay, if not frustrate, its timely delivery. As the people of Papua New Guinea waited patiently and anxiously for this Court's decision in SCR No 3 of 2011, they have waited for this decision, and this Court should not disappoint them.
  7. I commence my deliberations with the first topic which deals with this Court's jurisdiction under s 19 of the Constitution. As with any threshold issues relating to jurisdiction, I deal with the issue at the outset.
  1. Powers of the Supreme Court in Section 19 Reference.(Questions 26-29 in SCR No 1 of 2012; Qns 26 - 29)
  1. There are several issues raised under this topic: Is an opinion given under s19 an advisory opinion that is not binding? Depending on whether or not the opinion is binding, does s19 grant the Supreme Court jurisdiction to make declarations and orders to give effect to its opinion, inter alia, declarations and orders that affect the performance of functions of the Parliament? Does the doctrine of separation of powers (Constitution, s 99 (3)) and the principles of parliamentary privilege over parliamentary proceedings (Constitution, ss 134 and s 115) prevent the Court from making such declarations and orders?
  2. Sections 18 and 19 of the Constitution repose in the Supreme Court original and exclusive jurisdiction to determine questions relating to the interpretation and application of provisions of the Constitution. Those provisions are expressed in the following terms:

"Subdivision C.—Constitutional Interpretation.


18. Original interpretative jurisdiction of the Supreme Court.


(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.


(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.


19. Special references to the Supreme Court.


(1) Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.


(2) An opinion given under Subsection (1) has the same binding effect as any other decision of the Supreme Court.


(3) The following authorities only are entitled to make application under Subsection (1):—


(a) the Parliament; and

(b) the Head of State, acting with, and in accordance with, the advice of the National Executive Council; and

(c) the Law Officers of Papua New Guinea; and

(d) the Law Reform Commission; and

(e) the Ombudsman Commission; and

(ea) a Provincial Assembly or a Local-level Government; and

(eb) a provincial executive; and

(ec) a body established by a Constitutional Law or an Act of the Parliament specifically for the settlement of disputes between the National Government and Provincial Governments or Local-level Governments, or between Provincial Governments, or between Provincial Governments and Local-level Governments, or Local-level Governments; and

(f) the Speaker, in accordance with Section 137(3) (Acts of Indemnity).


(4) Subject to any Act of the Parliament, the Rules of Court of the Supreme Court may make provision in respect of matters relating to the jurisdiction of the Supreme Court under this section, and in particular as to—


(a) the form and contents of questions to be decided by the Court; and

(b) the provision of counsel adequate to enable full argument before the Court of any question; and

(c) cases and circumstances in which the Court may decline to give an opinion.


(5) In this section, "proposed law" means a law that has been formally placed before the relevant law-making body." (my emphasis)


  1. Counsel for the affirmative relied heavily on passages from the Constitutional Planning Committee's Final Report, Part I (CPC Report) which described an opinion to be given by the Supreme Court as an "advisory opinion" that is "strictly speaking, not binding"; but that it "should have considerable weight.": see CPC Report, Part I, Paragraphs 150 - 155 p. 8/16 -17). They argued, that is exactly what an opinion given under s 19 is. The opinion offers a guide to future actions. The person concerned with the opinion has a choice to decide whether or not to follow it or give effect to it. Mr Donigi's submission was more emphatic, when he said a person concerned with what to do with an opinion has three choices:
  2. Counsel for the affirmative submit if the opinion is binding under s 19 (2), then it only binds the parties on the facts of the case and the law as it stands at the date of the decision. Where facts and the law have changed, the judgment is not binding.
  3. They argued the Court has no power to make declaratory orders, consequential orders and directive orders as in public interest suits and in ordinary civil suits.
  4. They submit whilst the Supreme Court may give such orders in a cause of action brought under s 18 (1) following the ruling of this Court in the Reference by Ken Mondiai (2010) SC 1087, the Court lacks jurisdiction to make such orders in a special reference brought under s 19. They submit this Court has consistently given advisory opinions in many constitutional references, however only in recent years, the Court strayed from that path and granted declaratory orders in two references, namely, Reference by Morobe Provincial Government; re Election of Governor General and SCR No 3 of 2011. As a result, the Court has overstepped its limits under the doctrine of separation of powers and politicized the bench. In this Court's recent decision in SCR No 3 of 2011, the Court issued declarations and orders which sparked off a constitutional crisis that politicized the Courts. This Court should now revert to the original position which is consistent with the CPC recommendations.
  5. Counsel for the negative submit s 19 (2) is clear; that the Court gives a binding opinion which has the same binding effect as any other judgments of the Supreme Court. That includes the power to give declaratory and other consequential orders to give effect to its opinion. This Court has issued declaratory orders in a number of cases.
  6. The submissions raise an important point of constitutional law that requires careful consideration. I wish to approach my deliberations by canvassing the provisions of the Constitution that have a direct bearing on the issues at hand and then examine the case law that the Courts have developed over time.
  7. Since Independence in 1975, the Supreme Court has decided many constitutional cases brought under s 19. In many of those cases, where the Supreme Court has expressed an opinion as to the consistency or inconsistency of a law or a proposed law with a provision of the Constitution and its application to the circumstances of a case at hand, the binding effect of the opinion has never been in doubt until today. The subject has attracted little judicial discourse because the words used in s 19 (2) are plain and clear. Many of those cases involved laws, even Constitutional Laws (Organic Laws) that were heavily grounded on political circumstances, that an opinion expressed either way could trigger controversy and produce political chaos and turmoil that could generate civil strife. Three such decisions that come to mind are the invalidation of Prime Minister Paias Wingti's re-election as Prime Minister in 1994 and the more recent cases of the invalidation of OLIPPAC and the invalidation of the election of Sir Paulias Matane as the Governor- General: see Haiveta v Wingti (No 3) [1994] PNGLR 197; SC 1085; Special Reference by Fly River Provincial Executive, re OLIPPAC (2010) SC 1057; Special Reference by Morobe Provincial Executive; re Election of Governor General (2010) SC 1085. All persons to whom the opinion applies, have always taken appropriate and necessary steps, so far as is within their lawful powers, to implement or to give effect to the binding opinion given under s 19. It is therefore necessary to construe the obvious in s 19 (1) and (2), to determine the issue.
  8. The Constitution establishes a system of Government for Papua New Guinea. Its preamble recognizes the obvious; that all power belong to the people of Papua New Guinea. The people, exercising that authority, acting through their elected representatives, enacted the Constitution. The people vested their general governing power in the government of Papua New Guinea. The people vested specific powers, directly, in each of the three arms of government (Constitution, s 99 (2)). The legislative power is vested in the National Parliament (Constitution, s 100(1)); the executive power is vested in the National Executive (Constitution, s 138); and judicial power is vested in the National Judicial System (Constitution, s 158 (1)).
  9. With regard to the National Judicial System, the direct vesting of the people's judicial power in the Courts of the National Judicial System is one of the main pillars of constitutional democracy in Papua New Guinea. The people of Papua New Guinea, they know, they vested their judicial power directly in the Courts of the National Judicial System, through the Constitution. The Constitution is not written in stone and cannot be changed; it can be altered from time to time to meet changing circumstances. Should the people decide one day that it is time to review the direct vesting of this power and to withdraw, alter, or circumscribe the conditions upon which the judicial power is vested, they are free to do so, through the exercise of their legislative power through their elected representatives, utilizing the processes and procedures provided for in the Constitution itself. The Constitution provides elaborate and stringent procedures and processes for altering its provisions, to ensure that an overwhelming majority of the people favour the alteration: see Constitution, Part II Division 1, Subdivision C (Constitutional Alteration and Organic Laws) (ss 13 – 17). For instance Section 17 of the Constitution provides for a prescribed majority vote in favour to alter the Constitution, those being by two-thirds majority, three-quarters majority or absolute majority.
  10. The judges have not taken lightly the direct vesting of the people's judicial power in the Courts: see Monom Yamba v Mait Geru [1975] PNGLR 322, Reva v Mase (1980) N260, Re Petition of MT Somare [1981] PNGLR 265; The State v Mongo Wonom [1975] PNGLR 311, Re Internal Security Act; Reference by the Ombudsman Commission [1994] PNGLR 341, Kila Wari v Gabriel Ramoi and Kingsford Dibela [1986] PNGLR 112, SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314, Re Criminal Circuits in Eastern Highlands and Simbu Provinces [1990] PNGLR 82, Review Pursuant to Constitution, Section 155(2)(B); Application by Herman Joseph Leahy (2006) SC855.
  11. Shortly after Independence, in 1980, one of few Papua New Guinean Constitutional lawyers who played a key part in drafting the Constitution, had the occasion in Reva v Mase (1980) N260, to make a judicial pronouncement on the purpose and philosophy behind the direct vesting of the people's judicial power in the Courts. Acting Justice Bernard Narokobi said:

"I recall, in the making of the Constitution days those largely involved in government service, arguing strongly that Subsection (5) ( of s 155) should not exist. It was my personal protest that led to the inclusion of Subsection (5).I foresaw an over anxious executive, having every command of the legislature, enacting laws, taking away or restricting human liberties, under written laws and leaving the aggrieved with no recourse to a Court of law, and justice and conscience.

Our Constitution is a fragile document. Various Sections can be changed with different degrees of Parliamentary approval. All sections can be changed by the Parliament. The people have no direct say, except through elected representatives in the change of any provision of their Constitution. A strong executive with the popular Parliamentary support may easily change or even subvert the will and the judicial power of the people, expressed through the Constitution, to be vested in the National Judicial System (s 158). It is all the more important that the Courts be not excluded ultimately from providing a forum in which competing interests of the parties, including the State, may be contested under prior acknowledged rules designed to exact truth and under disinterested referees. The judicial authority of the people is rightly vested in the National Judicial System (s 158)."


  1. Justice Brunton in Re Criminal Circuits in Eastern Highlands and Simbu Provinces [1990] PNGLR 82, stated the same principle in these terms:

The judicial power that is vested in the judges is a constitutional power. It is not subject to executive control either directly or indirectly, but is moderated by the Constitution, the Acts of Parliament, and the decisions of the Supreme Court. The constitutional source of that power is not the executive arm of government, or the legislative arm of government, but comes through the Constitution, the Acts of Parliament, and the decisions of the Supreme Court. The constitutional source of that power is not the executive arm of government, or the legislative arm of government, but comes, through the Constitution, directly from the people. Subject to the Constitution, the judicial authority of the people vests in the National Judicial System: Constitution, s 158 (1). Of course, the Constitution, in accordance with its own terms, may be altered to vest that power elsewhere, but otherwise judicial authority is a separate component of a whole that may only be affected by acts that are regulated constitutionally. Judicial authority cannot be reduced by administrative fiat."


  1. The Courts of the National Judicial System, and especially the Supreme Court, are the custodian of the Constitution. The Supreme Court, as the apex Court, is given special and exclusive powers to guard the Constitution against abuse. Sections 18 and 19 of the Constitution are the pinnacle of that power. Section 18(1) vests the Supreme Court with "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." Section 19 (1) confers on the Supreme Court jurisdiction to give an opinion on any question relating to the interpretation and application of a Constitutional Law. Such is a broad power that includes an opinion as to the constitutional validity of the action in question. Section 19 (2) accords the opinion a binding status.
  2. The Constitution is the supreme law of Papua New Guinea against which all governmental acts are measured for consistency or validity. Any actions, whether legislative, executive or judicial that are inconsistent with the Constitution, are, to the extent of that inconsistency, unconstitutional and therefore invalid and ineffective. The provisions of the Constitution "are self executing to the fullest extent that their respective natures and subject - matters permit": s 11 of the Constitution.
  3. In Constitutional references or reservations decided by the Supreme Court in the first decade following Independence, the judges use the expression advisory opinion to refer to an opinion given under s 19 (1). Judges in subsequent cases have adopted that expression. To my understanding of those cases, the judges made no clear judicial pronouncement of principle with regard to what constitutes an advisory opinion under s 19 (1) in the light of s 19 (2). In all the decided cases that have reached my attention, it seems to me that the judges who use that expression simply adopted the expression from the CPC Report, without fully considering the wording of s 19 (1) and (2) as they appear in the Constitution. In the process, judges with respect, have imported the word advisory into s 19 (1), to render an opinion given under that provision the appearance or status of an advisory opinion: SCR No 4 of 1980; Re Petition of M.T. Somare [1981] PNGLR 265 at 268 – 269, SCR No 2 of 1981; Re s 19 of the Constitution [1981] PNGLR 518 at 528 – 529, SCR No 3 of 1982; Re s57 and s155(4) of the Constitution [1982] PNGLR 405 at 406-407, SCR No 2 of 1987; Reference by Robert Henry Seeto Member for West Coast Namatanai in the New Ireland Provincial Assembly and Former Premier [1987] PNGLR 31 at 35-36; Enforcement Pursuant to Constitution s57; Application by Gabriel Dusava (1998) SC581; Reference by the Attorney-General and Principal Legal Adviser to the National Executive (2010) SC1078.
  4. It is necessary to reflect on the CPC's report and recommendations and the subsequent actions of the Constituent Assembly that culminated in enacting what is now s 19. In its final report, under the caption "Advisory Opinion", the CPC discussed the notion of an advisory opinion and its non-binding effect. It described an opinion to be an advisory opinion that is "strictly speaking, not binding" but one that "should have considerable weight.": CPC Final Report, Part I, paragraph 150 - 155 p. 8/16 -17. The CPC's discussions and recommendations do not feature in the draft Sections appearing at the end of the discussions: see paragraph No 1 – 13 inclusive, at pages s/18 – 8/20. That is the same passage that counsel for the affirmative have referred us to.
  5. The present wording of s 19 (1) and (2) is in complete contrast to the CPC's discussions and recommendations. My research for an explanation has produced an answer as to how s 19 (1) and (2) were enacted in their present form. According to the House of Assembly Debates in 1974 on the CPC Reports as they have been recorded in PngInLaw database, the hansard records show the debates on a proposal to amend the wording of the various sections recommended by the CPC. The final resolution of the House of Assembly was to adopt the CPC Report proposals as amended by the Government Paper "Proposals on Constitutional Principals and Explanatory Notes" and as further amended by the House. However the wording included in s 17 of the 4th draft of the Constitution amended and renumbered 10th May 1975, is identical to the wording of the draft Constitution presented to the Constituent Assembly in 1975 by Chief Minister Michael Somare, for Section by Section debate. There are no discussions in those debates proposing any further amendment.
  6. Section 17 of the 4th draft Constitution is identical in wording to s 19 as adopted on 15th August 1975 apart from the change in s 17 (3) (h) from "the council" to "a body". It therefore appears that the changes reflected in the draft Constitution from the CPC proposals in the CPC Report were not the subject of any debate in the Constituent Assembly.
  7. In my view, the adoption and enactment of s 19 (1) and (2) in its present form, without debate, is a tacit expression of the Constituent Assembly's rejection of the notion of an advisory opinion that is not binding. Given the close scrutiny that the draft Constitution received from the CPC, the House of Assembly and later the Constituent Assembly; and the Section by Section debates on the 4th draft, it can hardly be said that Section 17 of the 4th draft Constitution escaped the attention and scrutiny of the members of the Assembly. In my view, there can be no doubt as to what the Constituent Assembly's intentions were in enacting s 19 (1) and (2). The meaning of the expressions opinion in s 19 (1) and (2) and binding opinion in s 19 (2) are plain and clear. They mean what they say.
  8. What then is the meaning of the expressions "an opinion", "decision" and "binding" as those expressions appear in s 19(1) and (2). Those terms are not defined in the Constitution because their ordinary English meaning is not in doubt. Those terms are words of common usage in the English legal vocabulary and of ordinary usage that unless they are ascribed a special meaning in law, their ordinary meaning will suffice.
  9. The word binding means imperative, compulsory or obligatory: Dictionary of English Synonyms & Antonyms, Penguin reference. A decision of the Supreme Court is binding on the parties in the case and all other Courts except itself: Constitution, Sch 2.3.
  10. With regard to "opinion", counsel for the affirmative referred us to a number of definitions of the term. I prefer the definition of "opinion" found in the Oxford Dictionary of Law (7th ed). An opinion is defined as "A judgment in the House of Lords". In our context, an opinion is a judgment of the Supreme Court.
  11. In the same law dictionary, the word judgment is defined as having two components; the opinion which is the reasoning process or the reasons for the decision; and, the decision which determines and disposes of the dispute in the case. The definition is in the following terms:

"judgment n. 1. A decision made by a court in respect of a matter before it. Judgments may be interim (interlocutory), deciding a particular issue prior to trial of the case; or final, finally disposing of the case. They may be in personam, imposing a personal liability on a party (e.g. to pay damages); or in rem, determining some issue of right, status, or property binding people generally. 2. The process of reasoning by which the Court's decision was arrived at."


  1. In the context of s 19, Subsection (4) makes provision for an Act of Parliament and the Rules of Court to provide for further matters relating to the jurisdiction of the Supreme Court under s 19. The Supreme Court Act (Ch No 37) comes within the meaning of s 19 (2) and (4).
  2. The term "judgment" is defined in s 1 of the Supreme Court Act (Ch No 37 ) as follows:

"judgment" includes a finding, decree, order, rule, conviction, verdict and sentence, a decree, order or rule nisi, and a refusal to make a finding, decree, order or rule."


  1. Section 7 of the Supreme Court Act makes a distinction between an opinion and a judgment, in the following terms:

"7. Judgements of the Supreme Court.


(1) Subject to Subsection (2), a judgement of the Supreme Court shall be in accordance with the opinion of the majority of the Judges present.


(2) If in an appeal the opinions of the Judges are divided in such a way that there is no majority opinion, the judgement appealed against stands."


  1. The word "decision" appearing in s 19 (2) is not used in s 1 and s 7 of the Supreme Court Act; the word used is judgement. The ordinary English definition of a decision is "a choice or judgment that you make after thinking about what is the best thing to do": Oxford Advanced Learner's Dictionary, New edition. The word decision is synonymous with the words resolution, conclusion, verdict, judgment, ruling, settlement or finding: Dictionary of English Synonyms & Antonyms, Penguin reference. Where the words decision and judgment appear in s 19 (2) and s 1 and 7 of the Supreme Court Act, those words are used interchangeably and synonymously to mean the same thing.
  2. In my view an opinion referred to in s 19 (1) means the reasoning process or the reasons expressed by the judges as to questions in the reference as to the interpretation and application of provisions of a Constitutional law, as it relates to the questions of a law or proposed law or to any other actions in question. The expression a decision of the Supreme Court referred to in s 19 (2) when read in conjunction with the expression judgment of the Supreme Court appearing in s 1 and s 7 of the Supreme Court Act, means the resulting determination of the Court that disposes of the proceedings. The decision may take the form of a finding, decree, order or ruling that disposes of the application brought by the referrer.
  3. In my view, it goes without saying that the opinion of the judges on the questions in the reference and the decision or judgment that follows from the reasoning are integral parts of the Supreme Court's exercise of jurisdiction under s 19. For it serves no purpose in judicial decision-making for the Judge(s ) to hold an opinion that cannot be supported by a decision or judgment that is binding and enforceable on its own terms. . In my view, that is precisely what a combined reading of a binding opinion that has "the same binding effect as any other decision of the Supreme Court" in s 19 (2), means, and plainly so.

  1. A binding opinion given under s 19 (1) and (2), to the extent that the opinions expressed by the Judges lead to a judgment of the Court as to the validity of a legislation and actions taken there-under by the government authority concerned, is self-executing to the fullest extent that their respective natures and subject matters permit. This is made clear by s 11 of the Constitution. The decision is not a matter of choice for the government authority concerned to accept or reject, to give effect to. That has always been the way binding opinions as to the constitutional validity of laws, proposed laws and other forms of governmental actions under challenge have been received, accepted and complied with.
  2. The judgment of the Supreme Court is binding and enforceable. Constitution s 155 (6) is clear as to the duty of every person to comply with judgments of the Courts. It states:

"Subject to any right of appeal or power of review of a decision, it is the duty of all persons (including the Law officers of Papua New Guinea and other public officers in their respective official capacities), and of all bodies and institutions, to comply with and, so far as is within their respective lawful powers, to put into effect all decisions of the National Judicial System".


  1. The binding effect of the judgment of the Supreme Court or any other Courts of the National Judicial System for that matter, particularly when the judgment is expressed in the form of a ruling, declaration or order; by reason of s 155 (6) of the Constitution, has never been in doubt. It is the duty of all persons, every person, to strictly comply with the judgment or order " unless and until it is discharged, even if they do not agree with or think it is invalid or irregular": Review Pursuant to Constitution, Section 155(2)(B); Application by Herman Joseph Leahy (2006) SC855. The expression "all persons" in s 155 (6) is all encompassing and inclusive; it applies to all persons charged with performing constitutional functions. No one person, including the Head of State or the Governor – General and the heads of the three arms of government), is excepted. It is informative and serves as a reminder to all of us, to reproduce in full, pertinent parts of the statement of principle in the Herman Leahy case. The Court said:

"117. In arguing that Section 526 is unconstitutional the applicant places great store in the duty imposed by Section 155(6) on the Public Prosecutor, so it is instructive before going further to clarify what the duty is, and on whom it is imposed.


118. The duty is to:


· comply with; and

· to put into effect (so far as is within the respective lawful powers of those subject to the duty),

· all decisions of the National Judicial System.


119. The duty is imposed on:

· all persons (including Law Officers – such as the Public Prosecutor – and other public officers in their respective official capacities); and


· all bodies and institutions (note that this is not restricted to governmental bodies, so it includes everybody, governmental or non-governmental, public or private, eg companies and other bodies incorporated under an Act of the Parliament).


120. Two things immediately stand out about the duty imposed by Section 155(6).


121. First, it is not a duty that really needs to be expressly stated in the Constitution. All Section 155(6) says is that everyone has a duty to comply with and put into effect court decisions. In a constitutional democracy such as Papua New Guinea's, where the judicial authority of the People is vested in the National Judicial System, which (alongside the National Parliament and the National Executive) is one of the three principal arms of the National Government, it would seem to go without saying that everyone has that duty.

(See Constitution, Sections 99(2), 158(1)). It is a duty enforced generally by the law of contempt (see, eg, Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448, Raine DCJ, Saldanha J, Kearney J, Wilson J, Greville-Smith J; Pius Mark v Korali Iki [1995] PNGLR 116, National Court, Akuram AJ; and see generally E L Kwa, Constitutional Law of PNG, Law book Co ©2001, par (7.8): Obedience to Court Decisions, pp, 126-127).


122. Sakora J correctly reflected on the constitutional authority of the Supreme Court and the National Court to demand compliance with and the giving effect to their decisions in Peter Luga v Richard Sikani Commissioner, Correctional Services and The State (2002) N2285:


The Constitution vests contempt powers on the two superior courts (the Supreme and National Courts of Justice) to punish offences against themselves under ss 160(2) and 163(2) respectively. Similar language is employed in these provisions to describe the power:


The [Supreme/National] Court is a superior court of record and accordingly subject to any Act of the Parliament, has the power to punish the offence against itself commonly known as contempt of court.


This is of course inherent power translated into statutory form under the Constitution ... . The courts, therefore, have undoubted powers to compel observance of their processes and obedience of and compliance with their orders and directions. These powers are inherent ... in the sense that they "are necessary attributes to render the judicial function effective in the administration of justice". Expressed in another way, the power to punish for contempt is inherent in the judiciary. The contempt power enables the courts to perform their functions without interference, to control courtroom behaviour and to enforce orders and compel obedience.


123. The duty is also reflected in the principle that the plain and unqualified obligation of every person in respect of whom a court order is made, to obey it unless and until it is discharged, even if they do not agree with or think it is invalid or irregular. As long as a court order exists it has to be obeyed (Philip Soon Kiat Yap v Tin Siew Tan, B & T Engineering Pty Ltd,Robert L Wong, William Baptiste and David F Tau [1987] PNGLR 227, National Court, Hinchliffe J).


124. The duty imposed by Section 155(6) is thus unremarkable. Without the express injunction of Section 155(6), the duty would exist by necessary implication.


125. The second thing that stands out about Section 155(6) is that it does not impose a special duty only on the Public Prosecutor or Law Officers. The duty is imposed on every human person (citizen or non-citizen) and everybody or institution in the country. No one is immune. It is all encompassing." (my emphasis).


  1. Section19 (1) makes it clear that the exercise of its jurisdiction is not limited to a binding opinion of the constitutional validity of a legislation or any other decision of the Parliament of constitutional significance. The expression "including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law"(my emphasis) in s 19 (1) and s 19 (2) show the Constituent Assembly's intention that the Supreme Court's jurisdiction should not be confined to merely giving a binding opinion on the validity of legislation or other acts of Parliament but that it should also include the grant of appropriate relief, as the Supreme Court would grant in any other judgment of the Supreme Court, in the form of declarations, orders, rulings, decrees, etc that are necessary to give effect to the Court's binding opinion, particularly in cases which are grounded on facts.
  2. There is ample case law in this jurisdiction that has developed to affirm the same position. In Supreme Court Reference No. 4 of 1980 [1981] P.N.G.L.R. 265 at 276; Kearney Dep. CJ was the first judge to make a clear statement of practice; that an advisory opinion is in effect the equivalent of a declaration or declaratory order of the Supreme Court. That view has been consistently adopted in subsequent cases in which the Supreme Court has issued declaratory orders, declaring unconstitutional and invalid a host of laws and other decisions of Parliament: see per Justice Miles in SCR No 2 of 1981; Re Electoral Boundaries [1981] PNGLR 518 at 528 - 530; Special Reference by Fly River Provincial Executive, re OLIPAC (2010) SC 1057; Special Reference by the Ombudsman Commission (2010) SC1027; Special Reference by Morobe Provincial Executive; re Election of Governor General (2010) SC 1085; Special Reference by Morobe Provincial Executive (2010) SC1089; Special Reference by East Sepik Provincial Executive (2011) SC1154.
  3. It seems to me that there are three types of cases that may be brought under s19. An opinion given in any of those types of cases is a binding opinion. The first type is one that simply seeks an opinion as to the meaning of a provision of a Constitutional law, without its application to any particular actions of the legislature, executive or the judiciary. In such cases, the Supreme Court can and must give its opinion on the meaning of the provision. The opinion advises what the law is on a subject matter. In a generic sense, the opinion is advisory. However the opinion on the state of the law is binding in that opinion has the same binding effect as any other decision of the Supreme Court. The persons concerned must act in accordance with the opinion.
  4. The second type involves determination of questions as to interpretation and application of a constitutional law, to a law or proposed law. The third type are those cases that involve application of that determination of constitutional principle to the facts before the Court, if any, real or hypothetical, as the case may be. There have been many judicial pronouncements on this Court's jurisdiction with regard to those two types of cases under s 19. An informative discussion on s 19 jurisdiction is found in the judgment of Justice Miles in SCR No 2 of 1981; Re Electoral Boundaries [1981] PNGLR 518 at 527-530. The part that is more pertinent to the point in question under s 19, is the following:

"Lastly and most importantly perhaps, the word "application" has to be looked at in the context of the Constitution s. 19 as a whole and in particular in the light of its use alongside the word "interpretation". The interpretation and application of laws are well and easily recognized functions of courts of law and no less of the Supreme Court of Papua New Guinea. A court interprets a statutory provision by ascertaining its meaning: in stating its interpretation the court is doing no more than expressing the terms of the statute in another and perhaps clearer way. The task of a court however is rarely confined to interpreting the law, although where the relief sought does not go beyond a declaratory order, the task may be so confined. More usually a court is required to adjudicate upon an issue by applying the law to the facts ascertained or admitted and coming up with a decision. This task of applying a law includes but goes beyond interpreting or ascertaining the meaning of that law.


In my view this is the sense in which the word "application" is used in the Constitution, s. 19. The Supreme Court is empowered and obliged to give its binding opinion on any question relating to the interpretation of any provisions of a constitutional law without reference to any particular set of circumstances. It is further empowered and obliged to give its opinion on any question relating to the application of any provision of a constitutional law to a particular set of circumstances. By virtue of the Constitution, s. 19 (2), the Supreme Court's opinion on a question of interpretation of a provision of a constitutional law will have a general binding effect. On a question of the application of a provision of a constitutional law, the court's opinion will have particular binding effect in relation to the facts found or assumed, and also presumably in relation to any similar factual situations which may occur."


  1. In the second type of case, if the Court gives its opinion on the validity of a law or proposed law, a declaration as to the validity or invalidity of the legislation may follow; and, in appropriate cases, other consequential declarations and orders designed to give effect to the opinion, may also follow. An authoritative statement of the principle is found in the judgment of Justice Sakora in In the Matter Pursuant to Section 18(1) of The Constitution, Southern Highlands Provincial Government v Sir Michael T Somare; Sir Matiabe Yuwi v Sir Michael T Somare (2007) SC854. The learned judge said:

"120. The dual functions of interpreting and applying provisions of the Constitution (s 18 and s 19) involve and entail the Supreme Court in, as well as its supervisory and controlling powers over exercise of both legislative and executive powers, legislative function. When a prospective law is pending or is being introduced into Parliament as a Bill, and is determined by the Supreme Court, upon constitutional challenge, to be unconstitutional and, therefore, invalid, the intended law is "defeated" as if it failed to pass on the floor of Parliament. Similarly, if the validity or constitutionality of an existing legislation (or subordinate enactment) were challenged and the Supreme Court declared it to be in breach of the Constitution. But the result would be a "repeal" of that law as if done on the floor of Parliament ".


  1. This passage when read in conjunction with s 11 of the Constitution, makes perfect sense. A judicial determination made by the Supreme Court under s 19 that a law or proposed law is inconsistent with a provision of a Constitutional law, is to the extent of the inconsistency, invalid and ineffective. It follows that when a legislative or other decisions of the legislature or the executive are found to be inconsistent with the Constitution by the Supreme Court under s 19, those acts are invalid and ineffective, and, such a finding is self-executing to the fullest extent. The finding or declaration of invalidity automatically invalidates the legislation, the effect of which is a repeal of the law. A declaration as to the unconstitutionality and invalidity of the law or proposed law by the Court is a natural consequence of its binding opinion. It requires no further action on the part of National Parliament or the National Executive to give the opinion its binding effect.
  2. In the third type of cases, the application of the Court's determination on constitutional questions to the factual circumstances of the case which gave rise to the Constitutional questions, invariably involves the Court issuing declaratory and other types of orders to give effect to its binding opinion. Several of those cases were grounded on facts concerning political circumstances and a binding opinion either way would produce political consequences that could change the balance of political power. This Court did not shy away from discharging its duty to give a binding decision, regardless of the political outcome of the decision. The judgment was complied with by all persons concerned.
  3. In the OLIPPAC case, a case concerning Parliament's enactment of the Organic Law on Integrity of Political Parties and Candidates (another form of Constitutional Law), the reference questions were prompted by political circumstances that prevailed at that time. A binding decision was most likely to substantially alter the political balance of power along party lines. The Court addressed its mind at the outset to the binding effect of its opinion; that its opinion was the equivalent of a declaration or declaratory order. The Court made specific reference to 19 (2) of the Constitution and the Supreme Court's decision in SCR No 4 of 1980 [1981] PNGLR 265 at 276 as the authority for that principle. At that time, the political party led by Prime Minister Sir Michael Somare had enjoyed a commanding majority in Parliament mainly as a result of the state of the Constitutional law that compelled members to vote for the Prime Minister or his government along party lines. As a result, the party concerned remained in power for almost a decade. That monopoly came to an end as a result of this Court's binding opinion which allowed MPs to freely perform their duties in Parliament. All persons concerned gave full effect to the binding opinion without any Court order to compel their compliance with the Court's decision. Disastrous consequences would have followed if the Parliament and the executive government had resisted or disputed the binding opinion and dismissed it as merely advisory.
  4. The OLIPPAC case was decided in July 2010. Earlier, in June 2010, in Reference by the Ombudsman Commission of PNG (2010) SC1058, this Court had given its binding opinion on another political case that had the potential for creating chaos in the system of National and Local Level Governments. Parliament had enacted amendments to the Organic Law on Provincial and Local-Level Governments that resulted in the removal from the provincial legislatures elected Presidents of Local Level Governments. The composition of the Provincial Assemblies of each of the 19 provinces of Papua New Guinea were reduced substantially, to a handful of members, comprising elected members of the National Parliament and a few unelected members, nominated by special interest groups. This Court found the amendment unconstitutional and invalidated the amendments. The executive government and the respective Provincial Governments gave full effect to the opinion. As a result, Local Level Government Presidents throughout Papua New Guinea peacefully rejoined their respective Provincial Assemblies. Disastrous results would have ensued if the executive governments of the National and the Provincial Governments had chosen to dispute the binding effect of the opinion and dismissed it as purely advisory.
  5. The Supreme Court's decision in Special Reference by Morobe Provincial Executive; re Election of Governor General (2010) SC 1085 is another example of a decision of Parliament that had partisan flavor to Parliament's decision. The Ombudsman Commission challenged Parliament's decision to re-appoint Sir Paulias Matane as Governor-General for a second term. The Supreme Court found the decision to be unconstitutional, declared the election invalid and ordered a new election. The Speaker of Parliament challenged the orders by way of an application to re-open the case under the slip rule principle, saying the orders interfered with Parliamentary independence and privileges. The same Court dismissed the application: Special Reference by Morobe Provincial Executive (2010) SC1089. Parliament complied with the orders and a new Governor- General (Sir Michael Ogio) was elected.
  6. The Supreme Court's decision in Special Reference by Morobe Provincial Executive (2010) SC1085, is in my view, by far the most authoritative statement on a binding opinion and issuance of declarations and orders to give effect to the binding opinion. A five-member bench (Sakora J, Batari J, Cannings J, Manuhu J and Gabi J) was unanimous in its opinion. The Court said:

" SCOPE OF THIS OPINION


148. The final issue we address is whether to make more detailed declarations and orders in addition to the answers we have provided to the eight questions that were referred to us.


149. It is a peculiar feature of this case that very specific questions have been referred to the Court that are based on very specific facts. In the past it has been common to confine references to the Supreme Court under Section 19 of the Constitution to general questions of constitutional interpretation or application, eg where the referring authority seeks an opinion on the constitutionality of an Act of the Parliament or an Organic Law. If an opinion is sought on the constitutionality of a particular decision, based on particular facts, it has been customary for the questions to be raised through Sections 18(1) or 18(2) of the Constitution.


150. If we were to confine our declarations and orders strictly to the eight questions we would be acting consistently with the past practice of the Supreme Court. If we were to give more detailed declarations and orders, we would be doing things differently. But we would not be doing something that is improper or acting outside the Constitution.


151. The Supreme Court recently took a broad approach to the extent of its jurisdiction under Section 19 of the Constitution in Provincial Executive Council of the Fly River Provincial Government of Western Province v Registrar of Political Parties (2010) SC1057, the Section 19(1) reference concerning the constitutionality of the Organic Law on the Integrity of Political Parties and Candidates.


152. We adopt that approach here, which is consistent with our duty under Schedule 1.5(2) of the Constitution to give all provisions of, and all words, expressions and propositions in, a Constitutional Law (by which we refer to Section 19(1) of the Constitution) their fair and liberal meaning.


153. Section 19(1) states:


Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law. [Emphasis added.]


154. Section 19(2) provides that an opinion given under Subsection (1) has the same binding effect as any other decision of the Supreme Court.


155. We consider that it is desirable and necessary, having regard to the overarching duty of the Supreme Court to uphold the Constitution and the Rule of Law, and the inherent power of the Court under Section 155(4) of the Constitution to make, in such circumstances as seem proper, such orders as are necessary to do justice in the circumstances of this particular case, to make a number of consequential declarations and orders. If we do not do so, we would leave too many questions unanswered: What action should the Parliament take next? What is the status of the incumbent Governor-General? What is the status of the Speaker? That may well lead to confusion and uncertainty and create the need for a further Section 19 reference or lead to proceedings in the National Court."

]

156. Therefore, in the light of our answers to the eight questions comprising the reference, we make the following declarations and orders, which are incidental to and shall be regarded as forming an integral part of our binding opinion on the eight questions."


DECLARATIONS AND ORDERS


(1) The appointment by the Queen and Head of State of Sir Paulias Matane as Governor-General, dated 25 June 2010, was unconstitutional and invalid.

(2) Sir Paulias Matane shall cease to hold office as Governor-General at 12 midday on 13 December 2010.

(3) There shall thereupon be deemed to be a vacancy in the office of Governor-General and accordingly, subject to Section 95 of the Constitution, the Speaker shall be the Acting Governor-General.

(4) The Deputy Speaker or other member of the Parliament authorised under Section 108 of the Constitution or the Standing Orders of the Parliament to exercise or perform the powers, functions, duties and responsibilities of the Speaker shall, in accordance with Section 88(4) of the Constitution, as soon as practicable, call a meeting of the Parliament to nominate the next Governor-General, provided that the time and date for the meeting shall be no later than 40 days after the date of this order.

(5) For the purposes of nominating the next Governor-General, all proposals, votes, decisions and other processes made or conducted in May and June 2010 in connection with the appointment of the Governor-General are a nullity and shall not be relied on and accordingly the process of nominating the next Governor-General shall recommence ab initio in accordance with Section 3(a) of the Organic Law on the Nomination of the Governor-General.

Judgment accordingly."


  1. SCR No 3 of 2011, Special Reference by East Sepik Provincial Executive involved real facts, both uncontested and contested facts. The contested facts were determined by a single Judge of the Supreme Court and placed before the full Court. The application of the opinion on the interpretation of constitutional law provisions turned on the facts as determined. It was necessary and imperative that the Court made declarations and orders to give effect to the Court's binding opinion.
  2. The present references involve a consideration of the constitutional validity of several decisions made by Parliament, both legislative and other decisions of constitutional significance. They also involve facts. A binding opinion given by the judges of this Court will necessarily involve the Court giving a judgment in accordance with the opinion of the majority; and, such judgment may be in the form of rulings, declarations and orders.
  3. Since Independence, in all previous constitutional cases in which this Court has made declarations of invalidity of legislation and other acts of the legislature and the executive and issued orders in appropriate cases to give effect to the judgment, no one government authority, to my knowledge has questioned and refused to give effect to it and to comply with those orders or to give effect to them. The judgments of this Court have been given full effect, up until the decision of this Court in SCR No 3 of 2011, in which the executive government and Parliament appear to have anticipated a judgment against them and took pre-emptive actions on 9th and 12th December, to frustrate the outcome of the anticipated judgment. This to me is a new and dangerous trend in the development of constitutional law and respect for the integrity and independence of the Courts that strikes at the very foundation of an independent judicial system, that is tasked with the duty to uphold, both the letter and spirit, of the Constitution and the rule of law.
  4. The submission by counsel for the Parliament or its Speaker that the opinion of this Court is advisory only and it is in the Parliament's discretion to give effect to the decision is clearly devoid of the true intention and purpose of s 19 (1) and (2). The force with which the submission has been put and supported by counsel for the Attorney- General and the Peter O'Neill, in the face of clear law in s 19 (1) and (2) as interpreted and applied consistently over the years by the Supreme Court, appears to be a calculated attempt to perpetuate the very mischief that s 19 (1) and (2) s 11 and all the other provisions alluded to, are intended to prevent.
  5. I understand and appreciate the principles that underpin the doctrine of separation of powers; that the three arms of government should be kept separate at arms length so that their actions do not encroach upon each other's respective constitutional functions: see the joint judgment of Amet CJ, Kapi DCJ, Woods J & Hinchliffe J in Re Internal Security Act; Reference by the Ombudsman Commission [1994] PNGLR 341. This Court has in numerous cases reaffirmed the principle. It is not my intention to depart from that path by advocating a different approach that would see the Courts encroaching or usurping the functions of the other two arms of government.
  6. We should not forget that there are checks and balances that are expressly stipulated in the Constitution to limit the exercise of power of the three arms of government. It is Parliament's exclusive domain to enact law and make other decisions that the Constitution and other laws expressly empower it to make. But its power is not unlimited. It must act in within the parameters imposed by the Constitution. The same applies to the executive and the courts of the National Judicial System in respect of the exercise of their powers.
  7. The power to interpret and apply the law to render consistency with the Constitution is an instance of judicial power that is only vested in the National Judicial System: Constitution, s 18, s 19 & s 158 (2). The Supreme Court's original and exclusive jurisdiction under s 18 and s 19 is the pinnacle of that jurisdictional power. That is a power that even Parliament or the executive must not, acting severally or in concert, by whatever actions they may each undertake in the performance of their respective powers, encroach upon or circumvent; except where Parliament, by Constitutional amendment, gives itself that power by altering those provisions following stringent procedures provided in the Constitution. Any such alteration must have due regard for the independence of the judiciary, that unlike the other two arms of government, is guaranteed total independence from external control and influence by s 157 of the Constitution.
  8. In SCR No 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122, the Supreme Court echoed the same principles in the context of Parliament's enactment of law that absorbed the criminal process designed to accord fair trial. The Court found that Parliament had gone too far by prescribing how a plea of guilty should be recorded for a traffic offence "in prescribing rules which control judicial decisions in certain cases, thus invading the realm of judicial power".
  9. In the same vein, this Court has stated in no uncertain terms that the Courts of the National Judicial System must not, on their part, usurp Parliament's legislative powers. I mention two cases that come to mind. In SCR No 2 of 1981; Re s19 (1)(f) of the Criminal Code [1982] PNGLR150, at 158-159, the Supreme Court ruled that the National Court's refusal to enter a conviction after the charge was proven was not a relief provided for by Parliament through written statute. The Supreme Court found that the trial judge "strayed beyond the field of judicial competence into a field reserved to the Parliament". In Acting Public Prosecutor v Aumane & ors [1980] PNGLR 510, the Supreme Court also found that the trial judge by imposing customary compensation for willful murder, strayed into a field reserved for Parliament to prescribe forms of punishment for crime, by a written law.
  10. An opinion given under s 19 (1) and (2) is a binding opinion that has the same effect and is enforceable as with any other decision of the Supreme Court. Whether Parliament has complied with Constitutional laws in enacting an Act of Parliament; or, any other decision made under exercise of Constitutional power is clearly justiciable; and, this court has over time in many cases affirmed that position. Such provisions as s 99 (3), s 134 and s 115 of the Constitution do not oust the Supreme Court's jurisdiction to determine Constitutional questions concerning Parliament's exercise of Constitutional power.
  11. I fully understand, as do many Papua New Guineans that have a fair understanding of our Constitutional system of government, that there is always that need for the three arms of government to maintain a delicate balance in the pursuit of their respective powers, to ensure that they do not cross the inviolable divide that separates them. With regard to the judiciary, the exercise of this Court's power to invalidate laws or proposed laws under s 19 is always fraught with the potential for conflict between the Courts and the legislature and the executive that sponsors the law or proposed law. This is because the Supreme Court is judicially reviewing Parliament's exercise of its law-making power and other decisions of constitutional significance, and in appropriate case, for the Court to unmake those laws and decisions. I am certain that the framers of our Constitution and the Constituent Assembly that approved the enactment of the Constitution was fully conscious of that risk but it deliberately chose to vest the Supreme Court with the original and exclusive jurisdiction to give a binding opinion that would result in invalidating laws made by Parliament. This is a unique power that, at that time, had no equivalence in Parliamentary democracies with a Westminster system of government. Even England, the mother of Parliamentary democracy, did not have any such provision in their unwritten Constitution. They were fully conscious of the principle of Parliamentary sovereignty and supremacy that was entrenched in the English Parliamentary system of Government that this country could easily adopt, but chose to move away from that situation and limited Parliament to the dictates of the Constitution. The wisdom and ingenuity of our founding fathers, many of them with limited knowledge of constitutionalism, is remarkable. They took advice from Constitutional law experts that helped them frame the Constitution; they foresaw a global movement towards a decline in Parliamentary sovereignty and supremacy; and the evolution of a Parliamentary democracy of limited power, limited by a written Constitution.
  12. In SCR No 3 of 2011, I observed that Parliamentary sovereignty in the United Kingdom has been declining in modern times. Even with an unwritten Constitution, the English Courts nowadays are increasingly assuming constitutional power to invalidate laws that offend the basic principles of the rule of law. The English Courts have acknowledged that the ultimate key to the survival of any Constitutional Parliamentary democracy is adherence to the rule of law that is enforced by the Courts, that is the ultimate controlling factor on which the Constitution is based: R (Jackson) v The Attorney-General [2005] UKHL 56; [2006] 1 AC 262. The down side of this in the United Kingdom is of course the potential conflict between the Parliament and its Parliamentary executive on one hand and the judiciary on the other hand, something similar to the situation that our country has been experiencing in recent times. In my view, such potential for conflict is no reason for the courts and judges to become recalcitrant and abdicate our constitutional duty to uphold the rule of law under the Constitution. The same point was echoed by Lord Hope of Craighead (now Deputy Chief Justice of the Supreme Court of the United Kingdom and Wales), in a speech presented on 28 June 2011 at WG Hart Legal Workshop under the topic 'Sovereignty in Question – A view from the Bench". His Lordship said:

" Of course, conflict between the judiciary and the legislature is undesirable. But circumstances could arrive where we are left with no alternative. A government which had no regard for the rule of law, seeing it as impediment to the action it wished to take, would hardly be likely to facilitate the enactment of a constitution that gave the rule of law pre-eminence. Politicians with an absolute majority in a democratically elected legislature who regard the rule of law as an impediment to progress may be tempted to use the mandate that their majority gives them to override its effect under the umbrella of democracy. My point in Jackson, and I think the point that Lord Steyn was making too, is the ultimate safeguard against such abuses of the legislative power lies in the power of the judges. After all, other countries such as the USA, Canada and Germany believe that rights are better protected when judges, rather than politicians, have the last word. It does no harm to our unwritten constitution for the judges to indicate to the executive arm of government that it should not assume that the sovereignty of Parliament, over which it has control, is entirely unlimited. The absence of a general power to strike down legislation which it has enacted does not mean that the courts could never fashion a remedy for use in an exceptional case where survival of the rule of law itself was threatened because their roles as the ultimate guardian of it was being removed from them."


  1. Thirty-six years on from Independence day, our written Constitution has been tested over time. It is publicly acclaimed that the Constitution has withstood the test of times. The contributions and efforts of the people and institutions in upholding the Constitution are too many to mention. It is acknowledged widely that the Courts of the National Judicial System and in particular, the National and Supreme Courts, have made a significant contribution in safeguarding the Constitution and in turn maintaining a vibrant democracy under Constitutional rule. The case law on the Constitution has developed significantly and in a consistent and coherent manner. I have extensively quoted passages from the cases that are pertinent to the issues in these references. Those cases and many more decisions of this Court in constitutional cases that have come before this Court bear testimony to the maturity of the Constitution and a fearless National Judicial System that, as the custodian of the Constitution, is jealously guarding the Constitution to ensure that its provisions are not flouted, subverted or destroyed by powerful elements within the society that control the very democratic processes that the Constitution itself has availed to them to operate within prescribed limits; to undermine the delicate separation of power between the three arms of government and trample on civil liberties of the people.
  2. I acknowledge that an advisory opinion given by Courts in other countries is not binding. For that reason, our s 19 (2) of the Constitution is in marked contrast to the Constitutions of those other countries: per Miles J in SCR No 2 of 1981; Re Electoral Boundaries [1981] PNGLR 518 at 528. This is where the Constitution's autochthonous character, the ingenuity and wisdom of our visionary founding fathers who crafted it, is and will, continue to be valued and appreciated by the people. They envisioned that an important judgment of the apex Court of the land concerning the interpretation and application of provisions of the Supreme Law of the land, should not be merely advisory, but that it should make conclusive determinations and findings on the questions posed for the Court's opinion; an opinion that is binding and has the same binding effect as with other judgments of the apex court, and enforceable. They foresaw that there would come a time when the country would become exposed to a greater risk to the public good in leaving an opinion in the absolute discretion of persons who were charged by the opinion to give effect to it, to decide whether to do so. As a consequence, the Constitution would be flouted, people's civil rights and liberties trampled upon, and a country ruled by the rule of law replaced by a country ruled by men who resort to scare tactics, intimidation, threat of force and force. They decided that the opinion should be binding on everyone and has the same force and enforceability as with any other judgment of the Supreme Court. Their intention is crystal clear and any arguments to the contrary, if accepted and given credence by the Courts, would reduce the court's opinion to nothing more than an academic discourse of the law which serves no useful purpose, thereby removing the apex court's authority to make binding judicial determinations on important constitutional issues and their application to circumstances which gave rise to those constitutional questions.
  3. The ultimate key to the survival of any Constitutional Parliamentary democracy anywhere in world today is adherence to the rule of law, with adherence to the Constitution at the helm. This is a fundamental principle of international law that has found universal acceptance in democracies everywhere. The principle underpins the legal and judicial systems of many modern democracies, including our country, that have a written Constitution. But even those Parliamentary democracies that have unwritten Constitutions such as the United Kingdom, the same principle underpins the separation of powers between the three arms of government.
  4. I am not persuaded that the development of case law on s 19 (1) and (2) by the landmark decision of this Court in Reference by the Ombudsman Commission; re Election of the Governor General, and followed in SCR No 3 of 2011 is due for re-visitation and overruling and a new principle to the contrary developed to the contrary. I am of the view that an opinion given under s 19 (1) and (2) is a judgment of the Supreme Court that has the same binding effect as any other judgment of the Supreme Court, to the extent that declaratory and other orders are given to give effect to the opinion expressed in the decision; and that those orders are self executing and enforceable.
  5. For the foregoing reasons, I answer the questions under this topic (Questions 26-29 in SCR No 1 of 2012) as shown in Appendix A.
  1. Decision by Parliament on 9 December 2011 to rescind leave of absence granted to a Member of Parliament; Sir Michael Somare (Questions 1 – 7 in SCR No 1 of 2012; Question a &b in SCR No 2 of 2012)
  1. On 9th December 2011 Parliament rescinded its earlier decision to grant leave of absence to Sir Michael Somare for the May meeting of Parliament. If this decision is found to be valid, Sir Michael would have missed three consecutive sittings of the Parliament and becomes eligible to be disqualified from remaining a member of Parliament under s 104 (2) d) of the Constitution.
  2. The issues and arguments of counsel raised under this topic are no different to those raised and determined by this Court in SCR No 3 of 2011. With the exception of the Hon Sam Basil and the Hon Jamie Maxton - Graham, the parties in that reference are the same as those in the present references. To the extent that those determinations are relevant to the issues in the present references, they are binding on the parties in these references, by reason of the application of the doctrine of res judicata adopted under Sch 2.8 (1)(d) of the Constitution.
  3. With regard to Parliament's decision to rescind grant of leave of absence, in SCR 3 of 2011, I held the view that it is open to Parliament to grant leave of absence to a member of Parliament for reasons it considers reasonable and for such leave to be granted with retrospective effect: SCR 3 of 2011, paragraphs 112 – 136. It follows that Parliament has the same power to rescind its earlier grant of leave of absence.
  4. I also said in SCR 3 of 2011 that any proposed decision that seeks to rescind grant of leave of absence which has the potential to disqualify a MP and the member concerned takes issue with the proposed decision, a question arises as to whether the person is qualified to remain an MP. The Speaker must give an opportunity to the member to be heard before a decision is made by Parliament to state a case for the National Court for its determination pursuant to ss 228-229 of the OLNPLLGE and s 135 of the Constitution. I said the National Court has exclusive jurisdiction to determine that question. Until the question is determined by the National Court, the person concerned still remains an MP. Parliament's failure to afford that opportunity to be heard is an infringement of the MP's Constitution s 50 right. Parliament's failure to follow the referral procedure is a breach of the Constitutional laws. Those decisions would be unconstitutional and invalid for those reasons.
  5. In the case of Sir Michael, at all material times, he always took issue with Parliament's actions to disqualify him from holding his seat in Parliament. His resilient resistance to Parliament and its Speaker's move to disqualify him is evident in many statements he or his agents made and the legal proceedings he has commenced or joined as a party and pursued them in Court to this day. Serious questions regarding Parliament's power to remove him through legislative and other actions in Parliament remain unresolved for the National Court to determine. Parliament and its Speaker failed to afford Sir Michael an opportunity to be heard on the matter; and Parliament and its Speaker failed to follow the procedure for disqualification of Sir Michael prescribed by s 135 of the Constitution and ss 4, 228-229 of OLNLLGE. Parliament breached Sir Michael's s 50 right by preventing him from performing his duties in Parliament. The decision made on 9 December 2011 is therefore unconstitutional and invalid ab initio.
  6. For the foregoing reasons, I answer the questions under this topic as set out in Appendix A.
  1. Prime Minister and National Executive Council (Amendment) Act 2011 (SCR No 1 of 2012, Ques 11-16)
  1. On 12th December 2011, Parliament passed the Prime Minister and National Executive Council (Amendment Act) 2011 which amended the principal Act. It was certified on the same day. The amendment was made retrospective to 1st January 2011: see Appendix C. The amendment prescribed a three month time limit for a minister appointed Deputy Prime Minister to hold the position of Acting Prime Minister when the Prime Minister is absent from the country. If the Prime Minister fails to return and assume his responsibilities as Prime Minister in that period, the Speaker is to inform Parliament that a vacancy in the office of the Prime Minister exists for that reason; and it is for Parliament to elect a new Prime Minister under s 142 of the Constitution. The amendment then validated the appointment of the Hon Peter O'Neill as the new Prime Minister on 2nd August 2012.
  2. Amongst other issues, in issue is the first amendment's compliance with the formal and substantive requirements of the law, retrospective effect of law and certification of the amendment.
  3. I reproduce the provisions of the Constitution that are considered under this topic. Section 109 of the Constitution states as follows:

109.General power of law-making.

(1) Subject to this Constitution, the Parliament may make laws, having effect within and outside the country, for the peace, order and good government of Papua New Guinea and the welfare of the People.

(2) In particular, Acts of the Parliament, not inconsistent with the Constitutional Laws, may provide for all matters that are necessary or convenient to be prescribed for carrying out and giving effect to this Constitution.

(3) No law made by the Parliament is open to challenge in any court on the ground that—

(a) it is not for the peace, order or good government of Papua New Guinea or the welfare of the People; or

(b) it purports to have extra-territorial effect.

(4) Each law made by the Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit, and there is no presumption against extra-territoriality. (my emphasis)


  1. Section 110 of the Constitution is in the following terms:

"110.Certification as to making of laws.

(1) Subject to Section 137(3) (Acts of Indemnity) and to any Act of the Parliament made for the purposes of Subsection (3), the Speaker shall certify under the National Seal, in accordance with the Standing Orders of the Parliament, that a law has been made by the Parliament and, subject to Subsection (2), the law comes into operation on the date of the certificate.

(2) Nothing in Subsection (1) prevents a law—

(a) being expressed to come, or to be deemed to have come, into force on a date specified by, or fixed in accordance with, law; or

(b) being retrospective or retroactive.

(3)..."

(my emphasis).


  1. Section 143 of the Constitution states as follows:

143.Acting Prime Minister.


(1) Subject to Subsection (2) an Act of the Parliament shall make provision for and in respect of the appointment of a Minister to be Acting Prime Minister to exercise and perform the powers, functions, duties and responsibilities of the Prime Minister when—


(a) there is a vacancy in the office of Prime Minister; or

(b) the Prime Minister is suspended from office; or

(c) the Prime Minister is—


(i) absent from the country; or

(ii) out of speedy and effective communication; or

(iii) otherwise unable or not readily available to perform the duties of his office.


(2) Where a Prime Minister is dismissed under Section 142(5)(a) (the Prime Minister) the person nominated under Section 145(2)(a) (motions of no confidence)—


(a) becomes the Acting Prime Minister until he is appointed a Prime Minister in accordance with Section 142(2) (the Prime Minister); and


(b) may exercise and perform all the powers, functions, duties and responsibilities of a Prime Minister.


(3) The question whether the occasion for the appointment of an Acting Prime Minister or for the exercise or performance of a power, function, duty or responsibility by an Acting Prime Minister, under this section has arisen or has ceased, is non-justiciable. (my emphasis)


  1. Traditionally, Parliament's competency to pass retrospective statutes is not denied: Smith v Chandler [1901] UKLawRpAC 17; [1901] A.C. 297, 305. Section 110 (1) reflects the principle that there is a general presumption against retrospective statutes. However the presumption may be removed by Parliament's contrary intention, by very clear language that a statute shall have retrospective application: Craies on Statute Law, 7th ed; p 387; Francis Bennion, Statutory Interpretation, 2nd ed; p 215; The Director –Division of District Administration and Others v Sacred Heart Mission (New Britain) Property Trust [1974]PNGLR 312 at 314; Milne Bay Provincial Government v Roy Evara and Anor [1981] PNGLR 63 at 66; Edwards v Jordan Lighting [1978] PNGLR 273, Pardo v Birmingham [1869] UKLawRpCh 29; (1870) L.R. 4 Ch. App 735,739,740; Re Chapman [1890] 1 Ch. 323,327. Smith v Chandler [1901] UKLawRpAC 17; [1901] A.C. 297, 305. Also see Polem Enterprises Ltd v Attorney-General of PNG (2008) SC911 at paragraphs 38-54 and JA Constructions v Ipisa Wanega (2010) SC1069, at paragraphs 13-19 for discussion on retrospective application of judgments based on statute law as it applied then. In this case, parties do not dispute Parliament's power to enact a statute that has retrospective effect, pursuant to s 110 (2) (b) of the Constitution. Section 5 of the first amendment is clear; that the amendment would have retrospective effect as from 1st January 2011.
  2. However, as with all Acts of Parliament, a statute that is clearly expressed to have retrospective effect is subject to the same judicial scrutiny for consistency with provisions of a Constitutional Law under s 19, in conjunction with s 11 of the Constitution.
  3. With regard to the other issues, clear answers emerge from the construction of s 143(1) and (3) of the Constitution and s 3 and s 4 of the principal Act. The first issue is whether the subject matters covered in the first amendment are matters which are authorized by s 143 of the Constitution to make provision for, by an Act of Parliament. Section 143 (1) ( c) (i) of the Constitution does not provide for the appointment of an Acting Prime Minister; that provision simply defines the occasion for which an Act of Parliament is to make provision for the appointment of an Acting Prime Minister. Section 143 (1) authorizes an Act of Parliament to make provision for the appointment of a Minister to be Acting Prime Minister in any of the situations stipulated therein, in mandatory terms. Section 4 (1) (c ) (i) of the principal Act already provides for the Deputy Prime Minister to become the Acting Prime Minister; not by appointment, but on ex officio basis. The pertinent parts of s 4(1)(c) (i) provides as follows:

" (W)hen – the Prime Minister is absent from the country... the Deputy Prime Minister is the Acting Prime Minister (my emphasis).


  1. Subsection (3) of the first amendment says "After the appointment of a Minister to be acting Prime Minister is made pursuant to Section 143 (1)( c) (i) of the Constitution" (my emphasis).
  2. In my view the new Subsection (3) is fundamentally flawed in that it makes provision for the appointment of an Acting Prime Minister, by some unspecified authority, under s 143 (1) (c ) (i) of the Constitution; when s 143 (1) does not authorize such an appointment; and when s 4 (1) (c ) (i) of the principal Act correctly makes provision for the Deputy Prime Minister to automatically assume the office of Acting Prime Minister on an ex officio basis when the Prime Minister is absent from the country.
  3. The time limit for Acting period is not expressly authorized by s 143 (1) of the Constitution to be provided for by an Act of Parliament. The period of Acting Prime Minister is determined by the period of the Prime Minister's absence abroad. If the Parliament intended that an Act of Parliament provide for the period of Acting Prime Minister, s 143 (1) of the Constitution would have expressly authorized an Act of Parliament to do so; which it did not. The principal Act, s 4 (1) (c) (i), is consistent with s 143 of the Constitution, in that the principal Act did not prescribe a time limit for an Acting Prime Minister.
  4. Arguments of counsel for the affirmative that the amendment law is for the interest of good governance is secondary to the threshold issue of consistency with the enabling provision in s 143 of the Constitution.
  5. For the foregoing reasons, I find that Subsection (3) (a) of the first amendment is inconsistent with s 143(1) of the Constitution in that respect; and therefore unconstitutional and invalid. Subsection (3) (b) and (c) (a) are consequential to Subsection (3) (a); they are also unconstitutional and invalid. The new amendment by inclusion of a new s 6 is also consequential upon Subsection 3; this provision is also unconstitutional and invalid. The remaining provisions of the PMNEC Act 2011 (preamble, s 4 and s 5) of their own are rendered meaningless once Subsection (3) and s 6 of the amendment are unconstitutional and invalid. The whole of the PMNEC (Amendment) Act 2011 serves no useful purpose and utility and is therefore unconstitutional and invalid.
  6. Applying the foregoing interpretation to the facts of the case, I find that at no time between January – 2nd August 2011 inclusive, did the Hon Sam Abal cease to be Acting Prime Minister and the Hon Sir Michael Somare cease to be Prime Minister. I find that there was no vacancy in the office of the Prime Minister for the Speaker to inform Parliament of the existence of a vacancy in the office of the Prime Minister on 2nd August 2011 and for the Hon Peter O'Neill to be validly appointed on 2nd August 2011. In any case the unconstitutionality and invalidity of the election of the Prime Minister on 2 August 2011 was determined conclusively by this Court in SCR 3 of 2011 as having been made contrary to s 142; that judgment is binding on every person including the parties to that case and these references. That decision represents the constitutional law governing s 142 of the Constitution and it cannot be contradicted, or rendered nugatory by an ordinary Act of Parliament.
  7. For the foregoing reasons, I answer the questions under this topic as shown in Appendix A.
  1. National Executive Council (Amendment No 2) Act 2011 (SCR No 1 of 2011, Q 17 & 18)
  1. On 21st December 2011, Parliament further amended PMNEC Act 2002 by enacting the Prime Minister and National Executive Council (Amendment No.2) Act 2011.The Speaker certified the amendment Act on 28 December 2011. I reproduce the second amendment in Appendix D.
  2. The second amendment introduces a maximum age of 72 of an MP holding the position of Prime Minister. The amendment also validated the actions taken by the Prime Minister, NEC and government officers after the appointment of Peter O'Neill on 2nd August 2011. The law has retrospective application to 1st August 2011.
  3. It is clear that Parliament has the power to pass the PMNEC (Amendment) Act 2011 under s 109 of the Constitution, and the Speaker of Parliament has the power to certify the amendment Act under s 110 of the Constitution. Parliament also has the power to enact retrospective legislation under s 110 (2) of the Constitution. Subject to the test of constitutional validity of that amendment law, Questions (b) and (c) of SCR No 2 can easily be answered in the affirmative.
  4. With regard to an age limit of a Prime Minister, the main question is whether the law complies with s 38 of the Constitution in that the law is reasonably justifiable in a democratic society having proper regard for the rights and dignity of mankind. The question is to be considered and determined in the context of the constitutional validity of a law that affects a qualified right: Constitution, Part III (Basic Rights), Division 3 (Basic rights), Subdivision C (Qualified rights, ss 38 – 56). The qualified rights under ss 44, 49, 51 and 52 of the Constitution that are affected by this amendment are rights which may be regulated or restricted by a law enacted under s 38 of the Constitution. This qualification is expressly adopted in those qualified rights provisions.
  5. It is established principle that in a reference brought under s 19 which concerns enactment of a law that affects a qualified right, the referrer who is usually aggrieved by the law, carries the initial onus of establishing a prima facie case of infringement of the protected right. The onus then shifts to the party relying on the validity of the law to justify the law, pursuant to s 38 (3) of the Constitution: OLIPPAC case; SCR No 3 of 2011. In the present cases, it is ironic that Dr Marat who represents the office of the Principal Legal Advisor to the National Executive Council which initiated the policy decisions that led to the enactment of the first amendment; and, Parliament, have brought these references. They are not aggrieved by that legislation. They are seeking this Court's determination as to the legitimacy of those decisions. Therefore the initial burden of proof rests with them to establish the validity of those decisions. That burden remains throughout the case. The onus is on the parties arguing the negative to show, on the balance of probabilities, that the qualification on their protected right or infringement of their protected rights, is not justified under law. That onus falls on Hon Sir Michael Somare, Sir Arnold Amet and the ESPE.
  6. It is established principle that a law made under s 38 of the Constitution must comply with the formal and substantive requirements prescribed by the provision that declares the qualified right and s 38. The following are the formal requirements: The law must -

(1) be expressed to be a law that is made for the specified purpose;

(2) specify the right or freedom that it regulates or restricts;

(3) be passed by absolute majority; and

(4) be certified by the Speaker in his certificate under Section 110

(certification as to making of laws) to have been made, by absolute majority.


  1. The substantive requirements are that the law must in fact be one that qualifies the appropriate right that it seeks to qualify; and, that such qualification must be reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind. Section 39(1) of the Constitution provides that "the question whether a law or an act is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind, is to be determined in the light of circumstances obtaining when the decision on the question is made". Section 39 (2) sets out sources of material or principles of law and international law that may be used as aids in determining the question.
  2. It is submitted for the affirmative that the second amendment is consistent with other laws which impose age limits for retirement of key government officers such as the Electoral Commissioner (55 years), Law officers (55 years) and Judges (60 years). Those retirement ages fall within the range of 55 – 60 years in other democratic countries that have long been accepted and the Prime Minister's case should be no different. It is the highest political office and an age limit at 72 is necessary to ensure the Prime Minister is physically fit and able to perform his duties effectively. Therefore the amendment law is reasonably justifiable in a democratic society.
  3. Counsel for the negative argued that the age limit of a person to run for public office as a MP is prescribed by s 141 (25 years). Section 50 of the Constitution imposes no age limit. None of those provisions prescribe a maximum age limit. If a maximum age limit were to be validly prescribed, that can only be introduced by Constitutional amendment to s 141 and s 50. The age limit fixed by an Act of Parliament is therefore inconsistent with s 141 and s 50 of the Constitution, is unconstitutional and invalid.
  4. Counsel for the affirmative submit s 50 right can only be enforced by s 57 application and not through these Constitutional references.
  5. With regard to the formal requirements, it is unfortunate that counsel on both sides with the exception of Mr Mende of counsel for the Deputy Speaker, overlooked the formal requirements and omitted to make meaningful submissions. As those are matters of constitutional law, it is unavoidable that this Court must address those matters. The principles on formal requirements are settled. see OLIPPAC case. If one or more of the formal requirements are not met, the decision or law is unconstitutional for that reason alone: see OLIPPAC case.
  6. In its preamble, the second amendment purports to comply with the four formal requirements in this way. It specifies that the law is made to give effect to the public interest in public order and public welfare. It specifies the qualified rights that the law regulates or restricts. The law was certified by the Speaker as having been made by an "absolute majority." Subject to what I say in the proceeding paragraph, the second amendment, on the face of it, does comply with those formal requirements.
  7. Against what appears to be compliance with the formal requirements on its face value, the question one must ask is whether the second amendment, in fact, complies with those formal requirements. A mere assertion that, that is so, is non-compliant with s 38. SCR No 4 of 2001 Re Validity of National Capital District Commission Act (2001) SC678, State NTN Pty Ltd [1992] PNGLR 1 at 1-8, 18-19.
  8. With regard to the first formal requirement, I fail to see how the "public interest in public order and public welfare" is to be given effect to by fixing a maximum age limit of an MP to hold the position of Prime Minister.
  9. With regard to the second requirement, the qualified rights referred to therein are of little or no relevance to the subject matter of an age limit. In my view, the qualified rights under Constitution, s 44, s 49, s 51 and s 52 have nothing to do with an age limit placed on an MP holding the position of Prime Minister.
  10. In my view, the only protected right affected by the age limit is an MP's right to hold public office under s 50 of the Constitution. The omission of s 50 by design or through in-advertence through poor draftsmanship, is fatal to the validity of this law. The law has failed to specify the only applicable right or freedom under s 50 that the law "regulates or restricts".
  11. Section 50 states:

"50.Right to vote and stand for public office.


(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—


(a) is under sentence of death or imprisonment for a period of more than nine months; or


(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph,


has the right, and shall be given a reasonable opportunity—


(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and


(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and


(e) to hold public office and to exercise public functions.


(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind." (my emphasis)


  1. The amendment law affects the s 50 right of all MPs, present and future. The target of the amendment is no doubt Sir Michael Somare who had gone past age 72 by the time the law was enacted. Whilst MPs who have reached 72 can still remain MPs and hold position as a Minister or Deputy Prime Minister, they cannot hold the position of Prime Minister. In that sense, the law is prohibitory of a member's right to hold public office as Prime Minister purely by reason of advanced age at 72. Therefore the law restricts, as opposed to regulate, Sir Michael's right or the right of any other MP that is similarly placed, to exercise his s 50 right, by reason of his age. Indeed in its preamble, the amendment law says so; that the law is made to "regulate or restrict a right or freedom referred to in Subsection III.3.C (Qualified Rights ) of the Constitution". (my emphasis). Section 50 right can only be regulated; not restricted. Section 50 (2) expressly authorizes a law made under s 38 to be "regulatory". In the OLIPPAC case, this was one of the main reasons why certain provisions of OLIPPAC were ruled unconstitutional and invalid: see OLIPPAC decision paragraph 103. The law in effect restricts, not regulate, a MP who has reached 72 from holding the position of Prime Minister. The law is prohibitory of a member's right to hold public office as Prime Minister. This is not permitted by s 50 (2) of the Constitution. I accept Mr Mende's submission on this point. For this reason, Section 3 of the second amendment is unconstitutional and therefore invalid.
  2. With regard to the third and fourth formal requirements, it is not shown on the face of the law if the law was in fact passed by an absolute majority. The certification by the Speaker that the law was made by absolute majority is not conclusive. The definition of "absolute majority" in Sch 1.2 of the Constitution makes it imperative for the Speaker to specify, in the law as part of the certificate, the number of votes in favour and those against the bill. Absolute majority means "affirmative votes equal to more than one half of the total number of those seats". As I noted in SCR No 3 of 2011, at a time when our Parliament is having chronic problems with securing a quorum for meetings, it is imperative that the Speaker specify in the certificate the number of votes for and against the bill. Further, I should strongly suggest that to give substance to those figures as a measure of good governance, public transparency and accountability; it is desirable that the names of members of Parliament who voted in favour of the law and those against should also be disclosed in the certificate. Such information will no doubt put to rest any doubt in the public's mind as to whether the requirement for an absolute majority was met. In the absence of those two critical items of information, I find that the third and fourth formal requirement was not met in enacting this law. The law is therefore unconstitutional and invalid for this reason.
  3. With regard to the substantive requirements, it is common for constitutional democracies to prescribe a minimum age for voters and candidates for elective office. Thus Section 141(1) of the Constitution prescribes a minimum age of 25 for a person to be eligible for election to public office. The CPC recommended the minimum age at 23 for the reason that the age of a member should be more than the voting age (18) and the age of maturity (21), "on the grounds that the majority of those persons under that age lack maturity required of a member of the house": CPC Final Report, Part I, paragraphs 6/2/ 18 – 19. The Constituent Assembly approved 25.
  4. It is most unusual or very rare for democracies to prescribe maximum age limit for voters and candidates for elective office. In my research, I have been unable to find any reference to a maximum age for voters or holders of elective office. The only known maximum age for voters is the Holy see (Vatican) where Cardinals cannot vote for election of the Pope after they reach 80 years of age: Wikipedia Encyclopedia, "Voting Ages around the World."
  5. In accordance with international best practices, Section 141 of the Constitution does not provide for a maximum age limit for MPs. Indeed a maximum age was not mentioned in the CPC Report and recommendations. It is obvious that the maximum age was never in the contemplation of the CPC. On a fair and liberal construction of s 141, it is open to conclude that it was Parliament's intention not to fix a mandatory maximum age limit in the same way it had expressly prescribed a minimum age limit.
  6. Statutory prescription of minimum age of majority is universally accepted as a pre-requisite for a person's physical and mental capacity to manage one's own life. In most democracies, the majority age ranges between 18 – 25. Any law in this country that prescribes a maturity age in this range for elective public office can be said to be a law that is reasonably justifiable in a democratic society that has proper regard to the dignity of mankind. The same cannot be said of a law that arbitrarily prescribes a maximum age of maturity for elective public office. Humanity would be verging on stereo-typical thinking to introduce a maximum age considered by some to be overly mature so as to lack capacity to conduct one's personal or public life.
  7. It is true that a person who is an elected MP who reaches 72 can be said to have reached old age. It is also true that old age brings diminution of physical and mental ability to effectively manage one's affairs. However, to my mind, to determine a MP's physical and mental capacity or ability to conduct his own public and private life purely by reason of old age, at a fixed age that is arbitrarily determined by some, is stereotypical thinking. It treats MPs who have or will reach the age of 72 during the life of the Parliament incapable of continuing to perform well. This is not true of most MPs. Also such mandatory age limit will result in the loss of most experienced, the wisest, and in many cases, most productive, most reliable, even healthiest MPs. In some public professions, performance levels reach their peak at old age. For instance, judges unlike many fields of endeavor, is a "late peak sustained activity". That is judges, unlike people in many areas of work, tend to reach their performance peak relatively late in life and "judicial creativity or achievement continues to a later age than is the case [even] in most academic fields". The same may be said of politicians. Many people, especially MPs would subscribe to this view, especially those MPs who wish to continue on in political life in Parliament, in the exercise of the s 50 right. Should they wish to do so, it is for their people, through the franchise, to decide it is time for their leader to quit public life. Should their people falter and elect someone who lacks full capacity to manage his public life, there are enough laws in this country that provide for removal of leaders on grounds of mental or physical incapacity, and those can be invoked by the appropriate authorities.
  8. A law such as the second amendment, that prohibits an MP from holding public office as Prime Minister is therefore a law that is not reasonably justifiable in a democratic society having proper regard to the dignity of mankind. It is also an absurdity for this law to say that whilst an MP can remain a member of Parliament and hold the position of a Deputy Prime Minister and Minister after he has turned 72, he or she cannot hold the position of Prime Minister. Whilst it is a known fact that the duties of a Prime Minister are more onerous than that of a Deputy Prime Minister and other ministers of his cabinet, the Prime Minister is the head of an executive government that has a collective and shared responsibility amongst members of the executive. It is possible too that the responsibilities of certain ministers of key ministries may be even more onerous than those of the Prime Minister and Deputy Prime Minister. To fix an age limit at 72 or any other mandatory maximum age limit for a Prime Minister is stereotypical, discriminatory and archaic piece of legislation that may have no resemblance in constitutional Parliamentary democracies around the world. Therefore, the law is not reasonably justifiable in a democratic society having regard to the dignity of mankind.
  9. I am satisfied that Sir Michael Somare, Sir Arnold Amet and the East Sepik Provincial Executive have established a prima facie case that the s 50 right of member of Parliament and especially Sir Michael who attained 72, to hold the office of Prime Minister, has been infringed by this law. The referrers' attempt to justify the substance of the new law with reference to the retirement age of senior government officers is, in my view, inadequate to discharge the burden placed on them by s 38 (3) to show the law is justified. I would have preferred counsel for the affirmative to provide material pertaining to the circumstances of the country when the law was made. Apart from the position of Sir Michael who had gone past 72, the affirmative have provided us with no material; or anecdotal information such as average life expectancy, age range of current or previous MPs especially those holding ministerial, Deputy Prime Minister and Prime Minister fort folios, etc. Similar information from other democracies has not been furnished to us. Also none of the materials set out in s 39 have been brought to our attention by the referrers. Therefore the referrers have failed to discharge the burden placed on them by s 38 (3) to justify the law.
  10. Further, by Constitutional law, the age qualification of a person to be elected to Parliament and to hold any public office is fixed by s 141 at 25. Section 141 does not stipulate a maximum mandatory age. Section 50 also does not fix a mandatory age. If Parliament intended a maximum mandatory age, it would have expressly said so in s 50 and s 141. In the absence of an express provision by a Constitutional law prescribing maximum age limit at 72, it cannot be supplied by an Act of the Parliament. In respect of the qualification of an MP to hold office as Prime Minister, it was intended that if the capacity of an MP to continue holding the position of a Prime Minister were impaired to a point that he was incapable of performing the duties of the office by reason of his age, that would then give rise to a medical problem that is the subject of a s142 (5) removal process. The amendment therefore is unconstitutional and invalid by reason of inconsistency with s 141 and s 50 of the Constitution.
  11. Section 6A of the amendment law is unconstitutional and invalid for this reason alone: see OLIPPAC case for similar reasoning and invalidation of OLIPPAC. Section 6B of the amendment law is consequential to s 6A and must be unconstitutional and invalid as well. Section 2 of the Amendment law is facilitative only and must fall too. Consequently the whole amendment is declared unconstitutional and invalid.
  12. For the foregoing reasons I find that the second amendment in its entirety is unconstitutional and invalid.
  13. I answer the questions under this topic as they appear in Appendix A hereto.

V . Parliament's power to enact PMNEC Act 2011 (SCR No
2 of 2012, Qn (c ))


  1. The question is whether Parliament has the power under s 109 to enact this law and whether the Speaker has the power under s 110 of the Constitution to certify the law. The answers are obvious from s 109 of the Constitution. Subject to the test of constitutional validity of the Act, I have determined under Topic III, the answers in the affirmative.
  1. Speaker's power to certify PMNEC Act 2011 (SRC No 2 of 2012, Qn (d)).
  1. The question is whether the Speaker has the power under s 110 of the Constitution to certify the law. The answer to the question is obvious from s 110 of the Constitution. Subject to the test of constitutional validity of the Act and its provisions that I have determined under Topic III, the answer is in the affirmative.
  1. Election of Prime Minister on 12 December 2011. (SCR No 1 of 2012, Qn 22 & 23).
  1. After passing the first amendment, on 12th December 2011, Parliament re-appointed Peter O'Neill as Prime Minister, immediately after the Supreme Court delivered its decision in SCR No 3 of 2011 Special Reference by East Sepik Provincial Executive on the same day.
  2. Counsel for the affirmative submit that a vacancy in the office of the Prime Minister was created on 9th December 2011 when Parliament rescinded Sir Michael's leave of absence for the May meeting. That vacancy was automatic; it occurred by operation of law pursuant to s 110 (2) (d) of the Constitution. Consequently, that created the occasion to appoint a new Prime Minister. The new Prime Minister was re-appointed on the next sitting day, that was on Monday 12th December 2011. The re-appointment complied with s 142 (2) and (3) of the Constitution. Counsel for the negative rely on this Court's decision in SCR No 3 of 2011 to submit that no such vacancy occurred and the re-appointment was done unconstitutionally.
  3. I find that the Hansard of 9th and 12 December 2011 that I quoted earlier, do not support the contentions of the affirmative for the following reasons:
  4. For the foregoing reasons, I answer the questions under this topic as shown in Appendix A.
  1. Appointment of Peter O'Neill by the Governor-General on 14 December 2012 (SCR No 1 of 2011, Qns 19, 20, 21, 24 and 25.)
  1. On 13 December 2011, the Governor-General Sir Michael Ogio recognized the appointment of new Ministers by Sir Michael Somare as Prime Minister in compliance with the Supreme Court order in SCR No 3 of 2011.
  2. On 14 December 2011, Parliament suspended Governor - General Michael Ogio, to allow the Speaker of Parliament Jeffrey Nape to assume the office as Acting – Governor. Jeffrey Nape administered the oath of office to Peter O'Neill as Prime Minister.
  3. The issues raised under this topic deal with the powers and functions of the Governor -General. Issues arise as to whether s 86 or s 142 of the Constitution confer on the Governor- General a discretionary power, to refuse to give effect to Parliament's appointment of the Prime Minister. A related issue is whether he had such power to refuse the appointment of Peter O'Neill as Prime Minister on 13th December 2011. The other issue is whether such actions of the Governor-General is open to challenge by way of judicial review.
  4. The powers and functions of the Head of State are set out in s 86 of the Constitution, as follows:

86. Functions, etc.

(1) The privileges, powers, functions, duties 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. (my emphasis)
  1. The submissions of Mr Henao of counsel for the affirmative is helpful as his exposition of the case law accurately reflects the law on s 86 of the Constitution. I recapitulate the main principles that are pertinent to this case. It is established principle that the position of the Head of State is symbolic or ceremonial; he has no independent power to make any decision. It is for a written law to make express provision for the Head of State to act in accordance with the advice of the appropriate authority. The real decision is made by the National Executive Council, Parliament or other statutory authority that is empowered to make a decision on the matter in question. If that decision is subsequently found by the Courts to have been invalidly made, that decision is rendered invalid and ineffective; and as a natural consequence thereof, the actions of the Head of State in recognizing the decision suffers the same fate: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122, Kila Wari and others v Gabriel Ramoi and Another [1986] PNGLR 112, The Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417 at 420-421, The matter of Section 18 91) of the Constitution, Southern Highlands Provincial Government v Sir Michael T Somare; Sir Matiabe Yuwi v Sir Michael Somare (2007) SC 854; SCR No 3 of 2011 Reference by East Sepik Provincial Executive (2011) SC 1154.
  2. On 13th December 2011 the Governor - General Sir Michael Ogio refused to act in accordance with Parliament's decision of 12th December 2011 because earlier that day, he had recognized and given effect to the Supreme Court orders of 12th December restoring Sir Michael to office as Prime Minister. Consequently, on 14th December 2011, he was suspended from office. The temporary vacancy was filled by the Speaker of Parliament the Hon Jeffrey Nape, as Acting - Governor General. Mr Nape administered the oaths to Peter O'Neill as Prime Minister in Parliament. Sir Michael Ogio's suspension was lifted and his Excellency later retracted his previous position and recognized Peter O' Neill as Prime Minister.
  3. The question arises whether the Head of State is bound by the Supreme Court's decision orders made under s 19 of the Constitution to give effect to its finding under s 142(2) and (3) of the Constitution. This issue, albeit not arising directly from the reference questions, is related to the issue of whether the actions of the Governor-General in refusing to act in accordance with a decision of the Parliament is judicially reviewable.
  4. Section 142 (2) of the Constitution provides for the Head of State to appoint the Prime Minister in accordance with a decision of the Parliament. He has no discretionary power to refuse to recognize the appointment. In my view however, the Head of State is bound by the Constitution (Constitution, s 82 (2), s 99 (1). There is always the unwritten principle of constitutional law to be observed, that Parliament's decision must be made in accordance with the Constitution and that the validity of the action taken by the Head of State in giving effect to Parliament's decision to appoint a Prime Minister, is conditional upon the validity of Parliament's decision. His action is subject to the Supreme Court's determination of constitutional questions on point. In a case where such questions arise and the only Constitutional authority in whom the people have directly vested their judicial power to resolve Constitutional questions and make binding determinations under s 18 or 19 of the Constitution, make a binding determination as to the constitutional validity of Parliament's decision, the Court's decision binds the Head of State. A binding opinion given by the Supreme Court forms part of the Constitutional laws of Papua New Guinea. That decision takes precedence over any other decision of Parliament made to the contrary, under subordinate statutes. The Head of State must comply with the Court decision and orders, pursuant to s 11, s 19 (2) and s 155 (6) of the Constitution. After-all, the office of the Head of State is one of two institutions comprising the Executive arm of government; the exercise of his powers and functions are subject to the Constitution. It is for this very reason that binding decisions made by the National Court and Supreme Court in many successful challenges to legislative and executive decisions have had the effect of automatically invalidating the Head of State's actions in formalizing Parliament's decision made under s 142 of the Constitution.
  5. The duty on the Governor-General to give effect to the binding opinion and comply with orders of the Supreme Court overrides his duty to give effect to the decision of Parliament that is inconsistent with the Court's decision. The duty is imposed by s 19 (2) in conjunction with s 11 and s 155 (6) of the Constitution. In the past, the exercise of the powers of the Head of State under law have always been understood and exercised in that way. When this Court and the National Court have invalidated legislative and or other acts of the Parliament; the actions of the Head of State have always followed the same fate as consequential matter. To the extent that the Head of State fails in his duty to give effect to or comply with the Court decision, his decision is judicially reviewable.
  6. Applying this interpretation to the facts of the case at hand, the Governor –General, on 13 December 2011, correctly recognized the Supreme Court order and validly refused to act on Parliament's decision of 12th December 2011, to appoint Peter O'Neill as Prime Minister. Parliament breached the Court order and acted unconstitutionally when it failed to give effect to the Court order by allowing Sir Michael to resume his rightful seat in the Parliament, and in his absence, re-appointed Peter O'Neill as Prime Minister. The Head of State perpetuated that breach of s 142 (2) and (3) as interpreted by the Supreme Court in SCR No 3 of 2011 when he retracted his earlier position and recognized the re-appointment of Peter O'Neill. In the same vein, the Speaker of Parliament and the Deputy Speaker and MPs who facilitated and or made the decisions of Parliament of 9th and 12th December 2011 breached the same provisions as interpreted by the Supreme Court in SCR No 3 of 2011; and, breached the Court orders. As the first amendment was unconstitutional, it provided no legal basis for the re-appointment of Peter O'Neill as Prime Minister.
  7. For the foregoing reasons, I answer the questions under this topic as they appear in Appendix A.
  1. Effect of this decision on Supreme Court's decision in SCR No 3 of 2011 delivered on 12 December 2011.
  1. The decision in these references effectively means the judgment and orders of this Court given in SCR No 3 of 2011 remain in force. As expressly pronounced in my judgment in that case and as manifested in the orders issued by the Court, the Court's opinion is binding and has the same effect as any other judgment of the Supreme Court. The declarations and orders made by the Court are binding and enforceable; and, every person affected by the judgment was duty-bound to give effect to that judgment and orders. The binding opinion and orders form part of the Constitution and constitutional principles of Papua New Guinea. Any actions and decisions made in breach of the binding opinion and orders, whether legislative or executive, and by virtue of s 11 of the Constitution are invalid and ineffective.
  2. It follows that the Parliament's decision to declare a vacancy in the office of the Prime Minister and to re-appoint Peter O'Neill as Prime Minister on 12th December 2011, without complying with the Supreme Court's judgment and orders, is unconstitutional and therefore invalid and ineffective.
  3. The Governor-General Sir Michael Ogio's action taken on 13th December 2011 to recognize Sir Michael Somare as Prime Minister and his cabinet was made in compliance with the Supreme Court order and therefore constitutionally valid.
  4. The Acting - Governor General Jeffrey Nape's action in Parliament in recognizing or formalizing the re-appointment of Peter O'Neill on 14 December 2011 was made in breach of the Supreme Court judgment and order made in SCR No 3 of 2011. His action is unconstitutional and therefore invalid and ineffective.
  5. With regard to Parliament's decision to pass the motion on 9th December, 2011 and to pass the first amendment on the morning of 12th December 2011, those decisions were made before the delivery of the Court's judgment in SCR No 3 of 2011. Those decisions are affected by the Court's judgment in SCR No 3 of 2011. The judgment was handed down later in time so it is open for anyone to argue quite properly that the judgment has no application to those decisions. In my view, in essence, the very same matters that were covered by those decisions were argued in SCR No 3 of 2011 by counsel representing the parties including the Parliament and the Court was seized of the matter. Those matters were sub-judice. Parliament's decisions of 9th and 12th December 2011 interfered with the Court's deliberations on those matters. Parliament's action by resolution and enactment of ordinary statute of 9th and 12th respectively, interfered with the Court's deliberations on those matters under s 19 of the Constitution. Parliament deliberately changed the facts and the law on which the reference questions were argued in SCR No 3 of 2011 in order to frustrate and undermine the Court's deliberations and pending decision, contrary to ss 11, 19 (1) & (2) and 155 (6) and s 157 of the Constitution. Those actions are unconstitutional and therefore invalid and ineffective by virtue of s 11 of the Constitution.
  6. For the foregoing reasons, the decisions the subject of these references made on 9th, 12th, and 14th December 2011 by various players I have mentioned are unconstitutional and therefore invalid and ineffective.
  1. Conduct of certain parties and their counsel and parties in SCR No 3 of 2011 and in SCR No 1 & 2 of 2012.
  1. Counsel for the Speaker of Parliament Mr Donigi in his submission described the aftermath of the decision of this Court delivered in SCR No 3 of 2011 as creating a constitutional crisis that could have been averted if counsel for the referrer had alerted the Court of Parliament's decision of 9th December 2011 and the decision of the morning of 12th December 2011. He argued the crisis was not of the Court's making but that of counsel for the referrer. He also placed the blame for the crisis that ensued from the judgment on the lawyers representing the Parliament, the Attorney General, Prime Minister Mr O'Neill and the Deputy Prime Minister. If they had done so, the Court could have re-opened the case for fresh arguments and reached different conclusions.
  2. I have read the draft judgment prepared by Justice Kirriwom on this point. I dismiss those arguments for the same reasons given by his Honour. In addition, it is my strong view that a crisis, if any, that followed the Supreme Court's decision was not of the Court's making. It was a struggle for political power or to stay in power that was never in the contemplation of this Court. This Court has always without fear or favour of political outcomes and consequences faithfully discharged its duty in upholding the Constitution and the rule of law, and the Constitution remains intact to this day; unshaken by political events.
  1. Judgment, Declarations & Orders of the Court.
  1. In order to give effect to the binding opinion of the questions in these references, I make the following declarations and orders:
  2. Those are the declarations and orders I make. It is up to other members of this Court to make their own decisions to adopt those orders.

____________________________________________


APPENDIX A


SCR NO 1 OF 2012

No.
Reference Questions
Answers: Injia, CJ
Decision by parliament on 9 December 2011 and schedule 1. 10 and Section 104 2 of the Constitution
1
Does Schedule 1.10 of the Constitution allow Parliament to reverse earlier decision of Parliament by a new Motion?
Yes.
2
Does any other section or schedule allow Parliament to reverse an earlier decision of Parliament by a new Motion?
Yes
3
If the answer to either question (1) or question (2 ) is yes, can parliament reverse a decision to grant leave for a Member to be vacant?
Yes, provided no questions arise to the qualification of the member of Parliament concerned to be or to remain a member of Parliament.
4
If the answer to question (3) is yes, was the decision of Parliament to rescind the leave given to Sir Michael Somare for May sittings valid?
Same as answer to Qn 3.
5
If a Member of Parliament has been absent without leave of the Parliament during the whole of three consecutive sessions of Parliament, does the seat of such member become vacant by operation of law in Section 104 (2)?
No. If questions arise as to the qualification of the member of Parliament concerned to be or to remain a member of Parliament, after giving the opportunity to be heard to the member concerned must refer the matter to the National Court for its determination under s 135 of the Constitution and ss 4, 228-229 of OLNPLLGE. The National Court has exclusive jurisdiction to determine the question.
6
If the answer to question 5 is no, when did Sir Michael Somare cease to be a Member of Parliament on 9 December 2011?
In the absence of a determination by the National Court under s 135 of the Constitution and s 4, s 228 and s 229 of OLNPLLGE, at no time did Sir Michael Somare cease to be a member of the Parliament.



7
If the answer to questions (5) is no when did Sir Michael Somare cease to be a Member of Parliament?
Same answer as in question 6.
Inherent Powers of Parliament
8
Does Parliament have inherent powers outside those set out in the Constitution?
No.
9
If the answer to question (8 ) is yes, what inherent powers?
Not necessary to answer.
10
If the answer to question 8 is yes, does Parliament have the inherent power to elect a Prime Minister when the incumbent Prime Minister has abandoned his position?
Not necessary to answer (or no)
Prime Minister and National Executive Council Amendment Act 2011 and Section 110 2 and 143 of the Constitution
11
Does section 110 (2) of the Constitution permit the making by Parliament of legislation with retrospective effect?
Yes, subject to the provisions of the law being consistent with the s 143 and other applicable provisions of the Constitution and with other provisions of the PMNEC Act.

12
If the answer to question (11) is no, then does any other provision of the Constitution allow Parliament to make retrospective legislation?
No.
13
If the answer to question (12) is no, then does Parliament have inherent powers to make retrospective legislation?
Not necessary to answer in view of answer to Qn 12.
14
Does Section 143 of Constitution allow for an Act of Parliament to impose a time limit on the duration of the appointment of an Acting Prime Minister?
No
15
If the answer to question 14 is yes, then did Sam Abal cease to be Acting Prime Minister on the expiry of three months from his date of appointment as Acting Prime Minister?
At all material times when Sir Michael Somare was absent from the country in 2011, Sam Abal was the Acting Prime Minister.



16
If the answer to question (14) is yes, did Sir Michael Somare cease to be Prime Minister on the expiration of 3 months after the appointment of Sam Abal as Acting Prime Minister when Michael Somare failed to return to Papua New Guinea and resume the office and duties of Prime Minister?
No.
Prime Minister and National Executive Council Amendment No. 2 Act 2011
17
Is the age restriction of 72 on a Prime Minister reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind?
No. The law is inconsistent with s 38, s 50 and s 141 of the Constitutional and therefore unconstitutional and invalid.
18
If the answer to question 17 is yes, is the age restriction constitutionally valid pursuant to Section 38 of the Constitution?
No. The law is unconstitutional and invalid.
Powers of Governor General Section 142 (2) and Section 86
19
Does the Governor General have any discretion under S142 (2) of the Constitution to refuse to appoint a Prime Minister in accordance with a decision of Parliament?
No, except where the decision of Parliament conflicts with a decision and orders of the Courts of the National Judicial System, in particular a binding opinion and orders given by the Supreme Court under s 19 of the Constitution.
20
Does the Governor General have any reserve powers under the Constitution in Section 86 or at all to refuse to appoint a Prime Minister in accordance with a decision Parliament?
Same answer as in Qn 19.
21
Did the Governor General have any power or discretion to refuse to appoint Peter O'Neill on the 13 December 2011 as Prime Minister?
Yes, by virtue of Supreme Court decision of 12 December 2011, by virtue of s 11, s 19 (2), s 155 (6) of the Constitution and provisions of Supreme Court Act. The Governor-General was under a duty to give effect to the decision and orders of the Supreme Court given in SCR No 3 of 2011.




Election of Peter O'Neill as Prime Minister Section 99 (3) and Section 134 of the Constitution
22
Is the election of Peter O'Neill as Prime Minister on 12 December non- justiciable:
  1. By virtue of Section 99 (3 )of the Constitution, or
  2. By virtue of Section 134 of the Constitution, or
  1. By virtue of both Section 99 (3 ) and Section 134 when read together?
No, under s 19 of the Constitution.
23
If the election of Peter O'Neill on 12 December 2011 is justiciable, was the election validly done in accordance with section 142 of the Constitution?
No
Appointment of Peter O'Neill as Prime Minister on 14 December 2011 Section 142 2
24
Are decisions by the Head of the State non-justiciable under the Constitution laws of Papua New Guinea?
Yes, if the actions of the Head of State are constitution with the Constitution as interpreted and applied by the Supreme Court under s 19 of the Constitution.
25
Is the appointment of Peter O'Neill by Governor General pursuant to Section 142 (2) of the Constitution justiciable?
Yes
Power of Supreme Court to make Orders which interfere with and affect the procedures and decisions of Parliament Section 99 (3) and Section 134 of the Constitution
26
What Constitutional powers if any does the Supreme Court have to make Orders which affect the powers of Members in Parliament during a sitting of Parliament?
Pursuant to s 19 (1) and (2) of the Constitution, the Supreme Court's opinion is binding and has the same effect as any other judgment of the Supreme Court; and has power to make orders in the nature of declaratory and other orders to give effect to its binding opinion, including orders which require Parliament to do certain things. The opinion and orders are binding on the Parliament.
27
Does the Doctrine of Separation of Powers as entrenched in the Constitution on Section 99 (3) preclude the Supreme Court from making Orders which affect the inner workings of Parliament?
Subject to the Constitution, No.
28
Does Section 134 of the Constitution prevent the Supreme Court from making Orders which dictate the carrying out of a procedure in Parliament?
Subject to s 19 (1) and (2) of the Constitution which gives the Supreme Court power to give binding opinion and consequential orders to give effect to its opinion, No.




29
Does Section 99 (3 )and /or Section 134 of the Constitution prevent the Supreme Court from ordering the Parliament to reinstate Sir Michael Somare as Prime Minister?
No.

SCR NO 2 OF 2012

No.
Reference Question
Answers
a
Does Parliament have the power, under Schedule 1.10 (1) and (3) [1.2.10 1 and 3] of the Constitution or any other constitutional law, to rescind its previous resolutions and decisions?
Yes, provided the decision is not inconsistent with the Constitution.
b
Does Section 141 of the Constitution permit a person who is not a member of Parliament to hold office as Prime Minister?
Yes, subject to the Constitution as interpreted and applied by the Supreme Court under s 19 of the Constitution.
c
Does Parliament have the power under Section 109 of the Constitution to pass the Prime Minister and National Executive Council Amendment Act 2011 on 12 December 2011?
Yes, provided the law is not inconsistent with the Constitution as interpreted and applied by the Supreme Court under s 19 of the Constitution.
d
Does the Speaker of Parliament have the power under Section 110 of the Constitution to certify the Prime Minister and National Executive Council Amendment Act 2011 on 12 December 2011?
Yes, provided the certificate discloses the number and names of members of Parliament who voted in favour of the law that,in the case of a law made under s 38 of the Constitution, comprised the absolute majority.

__________________________________________________
APPENDIX B
STATEMENT OF AGREED FACTS
(reproduced from Ms Twivey's submissions)


(1) On 17 May 2011 during the May meeting of Parliament a motion was passed that leave of absence be granted to Sir Michael Somare for the duration of the meeting on the ground of ill health.

(2) During the June meeting of Parliament in 2011, no motion was introduced in Parliament seeking further leave of absence for Sir Michael Somare.

(3) During the August meeting of Parliament in 2011, no motion was introduced in Parliament seeking further leave of absence for Sir Michael Somare.

(4) Sir Michael Somare was absent from Parliament during three consecutive meetings of Parliament being the May, June and August 2011 meetings.

(5) On 2 August 2011 Parliament passed a motion that pursuant to Section 142 (2) of the Constitution and Schedule 1.10 (3) of the Constitution and the inherent powers of the Parliament the office of the Prime Minister was vacant.

(6) On 2 August 2011, Peter O'Neill was elected to be Prime Minister on a vote of 70 to 24 members.

(7) On 2 August 2011, the Governor General Sir Michael Ogio appointed Peter O' Neill to be Prime Minister, Belden Namah as Deputy Prime Minister and appointed 11 new Ministers and dismissed 28 of the 33 existing Members of Parliament from office of Minister. These appointments and dismissals were published in National Gazette no G205 on 3 August 2011.

(8) By the decision of the Governor General on 2 August 2011 and publication of such decision in the National Gazette on 3 August 2011 Dr Allan Marat was appointed a Minister and Sir Arnold Amet was dismissed from being a Minister.

(9) SCR 3 of 2011 was filed in August 2011 by the East Sepik Provincial Executive. That Reference was heard in October 2011 and the Supreme Court reserved its decision.

(10) On 9 December 2011, the Parliament by resolution rescinded its decision to grant leave of absence to Sir Michael Somare for the May sittings of the Parliament.

(11) On 9 December the Governor General declared a vacancy of the East Sepik Provincial seat in the National Parliament. This declaration was published in the National Gazette No G363 on 9 December 2011.

(12) On the 12th December 2011, Parliament passed the Prime Minister and National Executive Council (Amendment) Act 2011.

(13) The Speaker of Parliament certified the Prime Minister and National Executive Council (Amendment) Act 2011 on 12 December 2011.

(14) Parliament then elected Peter O'Neill as Prime Minister on 12 December 2011.

(15) Subsequently, on the 12 December 2011 in SCR 3 of 2011 the Supreme Court found that the declarations on 2 August 2011 of the vacancy of office by the Prime Minister was invalid.

(16) The decision in SCR 3 of 2011 took effect from 12 December 2011 and not earlier.

(17) On 13 December 2011 Parliament received and noted the Opinion of the Supreme Court in SCR 3 of 2011.

(18) On 14 December 2011, the Acting Governor General pursuant to s 142(2) of the Constitution appointed Peter O'Neill as Prime Minister acting in accordance with the decision of Parliament made on 12 December 2011. This appointment was published in the National Gazette No G376 on 14 December 2011.

(19) Also on 14 December 2011, the Acting Governor General pursuant to Section 3 (2) of the Prime Minister and National Executive Council Act 2002 appointed Belden Namah to be Deputy Prime Minister, acting on and in accordance with the advice of Prime Minister O'Neill.

(20) Also on 14 December 2011, the Acting Governor General pursuant to Section 144(2) of the Constitution acting on and with the advice of the Prime Minister dismissed 20 members of Parliament from the Office of Minister, including Sir Arnold Amet. These dismissals were published in the National Gazette No G376 on 14 December 2011.

(21) Also on 14 December 2011, the Acting Governor General pursuant to Section 144 (2) of the Constitution signed the determination of Ministerial responsibilities and made Dr Allan Marat Attorney General. This was published on 14 December 2011 in the National Gazette.

(22) On 14 December 2011 the Prime Minister Peter O'Neill pursuant to Section 148 of the Constitution signed the determination of Ministerial responsibilities and made Dr Allan Marat Attorney General. This was published on 14 December 2011 in the National Gazette No G374.

(23) On 21 December 2011, Parliament passed the Prime Minister and National Executive Council (Amendment No 2 ) Act 2011.

(24) The Speaker of Parliament certified the Prime Minister and National Executive Council (Amendment No 2) Act 2011.

________________________________


APPENDIX C


RULING ON APPLICATION FOR RECUSAL (Edited/ 10/04/2012)


(1) INJIA CJ: The full Court jointly pre-tried these two Constitutional References and listed them for a joint hearing by the Supreme Court from 2 - 5 April 2012, the reason being that they raised related Constitutional issues. I was not a member of the bench that conducted the directional hearings to prepare the two references for hearing. I have now constituted this bench which is the same bench that heard and determined SCR 3 of 2011 on 12 December 2011, the reason being that this Court's decision in that reference delivered on 12 December 2012, gave rise to these two references.

(2) The referrer in SCR 1/12 has now brought an application for my recusal. The application is supported by the affidavit of the Referrer.

(3) The referrer's case is based on two of the six considerations set out in the decision of the National Court in Gobe Hongu Holdings Ltd v NEC (1999) N1964, which were adopted by the Supreme Court in Yama v BSP (2008) SC 921. The application is premised on two grounds which are said to raise reasonable apprehension of bias on my part. First, that I have an indirect personal interest in the outcome of SCR 1 & 2 because a determination on the main issue in those references, that is one of the legitimacy of the O'Neill/Namah Government, if determined in favor of Sir Michael Somare and his government team, will pave the way for my second suspension of 2 February 2012 to be lifted by the latter government. Secondly, there are issues which remain unanswered with regard to the stay order issued on 3 February 2012 in respect of the second suspension which I co-signed with two other members of this bench. No reasons for decision have been given to date. The referrer was not allowed to make his application to discharge that order before SCR 1 & 2 are heard. If SCR 1 & 2 are determined in favor of Sir Michael Somare and his team. Those two matters raise a reasonable apprehension of bias in the mind of an ordinary fair minded person, that I would not apply an impartial mind to the determination of the case at hand. In order to protect the independence and integrity of the public office that I hold and to maintain public respect for the judiciary, I should recuse myself from further participation in these proceedings. The case for the referrer is not that I will be actually biased, but that there is a reasonable apprehension or suspicion that I will be biased for the reasons alluded to.

(4) Arguments of counsel were made on those grounds. There are those interveners who supported the referrer and those who opposed the referrer's arguments. It is not necessary for me to recite those arguments as my ruling addresses those submissions.

(5) The matter of my first suspension in November 2011 is a fact that I cannot dispute. I also cannot dispute the fact that although I am not a signatory to the stay order issued in respect of the first suspension, I am the person whose personal and public interests are affected or effected. It is true that the grant of that order was not preceded by a hearing on the merits. But that suspension is history now. I understood from the affidavits of Dr Marat and Mr Namah filed in those proceedings that after a genuine plea to the NEC members that the NEC had not made the right decision, the NEC accepted their genuine plea and revoked the decision to suspend me from office. The full Court however determined that the contempt proceedings should still proceed and those proceedings are pending determination.

(6) The matter of my second suspension in February 2012 is also a fact that I cannot dispute. That suspension was stayed by three members of this Court and I am one of three signatories to that stay order. It is true that the order was not preceded by a hearing on the merits and no reasons for decision have been given to date.

(7) It seems to me that there is claim of some impropriety on my part in making certain decisions to protect my own interest in the public position that I hold as Chief Justice. What are those decisions?

(8) The decision to issue the first stay order is not my order. It was issued by a member of this Court because the suspension interfered with decision pending in SCR No 3 of 2011. This full Court later recognized that order.

(9) The decision to issue the second stay order was issued for the same reasons. The same reasoning applies. In the first stay order, the conditions stipulated in that order were stated in broad terms to cover any such other actions in the future and those orders remain in force to this day. The second suspension came at a time when contempt proceedings emanating from breach of the orders in SCR 3 0f 2011 occurred. This was followed by the filing of SCR 1 & 2 of 2012 which raised the issue of legitimacy of the O'Neill-Namah government. The suspensions was seen as a direct interference of my Constitutional duties to manage those cases and to panel Judges to hear and determine them.

(10) The inherent power to issue such orders with or without a public hearing, depending on the circumstances of the case at hand, is given to Judges by Constitution, s 37 (2). It reads:

37. Protection of the law.


(1)...

(2) Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.


(11) Also see Constitution, ss 160 (2) and 163 (2), which state as follows:

" The Supreme Court is a superior court of record and accordingly, subject to any Act of the Parliament, has the power to punish the offence against itself commonly known as contempt of court" (s 160(2)) "The National Court is a superior court of record and accordingly, subject to any Act of the Parliament, has the power to punish the offence against itself commonly known as contempt of court" (s 163(2)).


(12) Counsel have omitted to make mention of these important provisions in their submissions.

(13) In appropriate cases, this inherent jurisdiction may be exercised in a summary manner, such as for instance where contempt is committed in the face of the Court or the circumstances of the case are so compelling that the power should be exercised to preserve the Court process or the integrity and independence of Judges. The judges concerned have an inherent jurisdiction and power, given by s 37 (2) & ss 160 (2) and s 163 (2) of the Constitution to deal with the contempt charges himself, herself or themselves. The court's inherent power to deal with contempt committed in the face of the Court should be obvious to counsel and even a lay person. An ordinary Papua New Guinean for that matter, a bystander on the streets of Port Moresby or a layman in the village would expect the Courts and Judges themselves to take some robust steps to come to the protection of the Judiciary and the Judges from interference or attack in the performance of their judicial and related functions, if the Government through the office of the Attorney General who is traditionally responsible for coming to the protection of Judges and the Courts, cannot be expected to do so for obvious reasons. If contempt is committed in the face of the Court, the judge or judges who are affected can sit in the very case and issue orders to arrest the situation. It is of course open to any alleged contemnor to seek disqualification of a Judge the subject of the contempt proceedings, if he or she presides on the matter, and the application is considered and determined on its own merits.

(14) I now come to the first question: Do I have an interest in the outcome of SCR 1 & 2? Perhaps the first logical question to also ask is – What is the likely outcome of those cases? Do I know now? Do any of the other four Judges know? How will I influence the decision of 4 other eminent Judges? Given that we Judges have equal power to decide issues in the case, each of us participate in the hearing in our own right and form our own opinion or judgment on the issues in the case. A decision is reached by the majority decision? My view could well be in the minority.

(15) Then the issues in the cases – they are constitutional issues for interpretation and application. There are strictly no parties in a Constitutional Reference. The referrer and Interveners appear to assist the Court to arrive at a proper interpretation of the Constitutional and statutory provisions in question– that is our primary duty. So how can it be said that I will be biased in the interpretation of a constitutional law such that I will tailor its interpretation to suit a particular party to my liking to suit the outcome of the case.

(16) Even putting the referrer's case at its highest, if the decision of the majority goes against the O'Neill-Namah government, what guarantee is there that such a decision will be made to remove my suspension by that other government. Even if I deliver a judgment against the referrers or interveners aligned with the referrer's case, and it gains the support of the majority, the focus of the judgment is not to protect my position as the Chief Justice.

(17) Even then, I have private rights and public duties that I can seek protection of the Courts of law that I administer and due process is allowed when that happens. The pursuit of my private rights and public duties is not dependant on that judgment that this Court will deliver in SCR 1 and 2 of 2012. My private rights go to protection of my personal and professional integrity and reputation and my right to seek redress under due process of law. My public duties go to taking steps that are necessary to protect the high office that I hold, the Judges and the staff that work for us and the Judiciary as a whole, from interference in the due discharge of our constitutional functions by the other two arms of government and from private citizens. The public interest to protect the Courts and Judges from interference in the discharge of their judicial function and related administrative functions is the paramount consideration that overrides any private rights of the Judge concerned may have.

(18) There are many more questions which beg answers and I will stop there. In my view it is reasonable to infer that all the referrer is saying is assumptions and speculations. Reasonable apprehension of bias should not, in my view, be based on assumptions and speculations.

(19) In these prevailing circumstances and considerations, I reject the assertion that I have a personal interest, direct or indirect, in the outcome of SCR 1 and 2.

(20) There is a suggestion that I had something to do with the decision of three members of this Court to defer hearing of the referrer's application to set aside the stay orders of 2 February 2012. With respect, I say, that cannot be correct. It was a decision of the full Court comprising three other Judges of this Court that made the decision. If there is any apprehension of bias from that decision, I leave that to my brothers to respond to the assertion.

(21) Perception of bias in this case has been associated with public perception as manifested in public statements issued in the media on the subject of my perceived bias. It would be naïve of me to ignore public commentary on the subject of apprehension of bias. Much has been said and published in the media through the print media, radio network and the internet, both within and outside our jurisdiction, about perceived public perception. Some of those articles have been reproduced in evidence in the referrer's affidavit. The referrer has relied on those statements to express his opinion on what he considers to be the public perception.

(22) With respect, I think the picture that he paints of public perception is only one side of the story. There's always two sides to a story and the other story has not been told. And given my reading of the media, public opinion may, and should I say, is, equally divided. By public opinion, I mean the public that get access to the media and get the opportunity equal or fair opportunity to express their views in the media. What of the silent majority of over 7 million people of this country. What do they think?

(23) Although public perception as portrayed through media publications may be a guide for the Court's understanding of what the members of the public think on the issue, it is not critical in determining perception of bias. To determine public perception by this test is difficult, if not impractical or almost near to impossibility. For instance, if evidence were required, a cross section of the community representing the 7 million people of this country may have to be called to Court to give evidence of what they think on the issue. Another method may be to conduct a public referendum on the issue. Bu there is no time for all that.

(24) The test is whether an observer- a fair minded, lay observer", "an objective observer, knowing all the surrounding facts, would be left with an reasonable apprehension or suspicion, that fair hearing was not possible or that a fair decision is not possible". The task is left to the Judge concerned to make that judgment call, and the formation of that judgment calls for an objective assessment of all relevant matters to reach a conclusion. And in this case, given 18 years of service on the bench, I am well placed to make that judgment. I am guided by the oath took when I accepted the government's invitation to serve on the bench-"that I will in all things uphold the Constitution and the Laws of Papua New Guinea, and I will do right to all manner of people in accordance therewith, without fear or favor, affection or ill-will. " That judgment is, that I am upholding the Constitution, without fear or favor, affection or ill-will, to the best of my ability. And I have nothing to gain personally from these proceedings, directly or indirectly, materially or otherwise. A fair minded observe knowing the facts and considerations alluded to, would not hold a reasonable apprehension or suspicion that a fair hearing and a fair judgment in SCR No 1 & 2 is not possible. Conversely a fair minded observer would form a reasonable conclusion that the Chief Justice is simply and faithfully discharging his constitutional responsibility to uphold the Constitution with fear or favor, ill-will or malice to anyone in the government, individually or collectively, that appointed him to the job in the first place and that may remove him from office.

(25) In closing, I mention three statements of the principles canvassed in the Yama decision (paragraphs 26-28) that are pertinent to this case, as follows:

______________________________________________


APPENDIX D


Prime Minister and National Executive Council (Amendment) Act 2011.
Being an Act to amend the Prime Minister and National Executive Council Act 2002
Made by the National Parliament:


  1. COMPLIANCE WITH CONSTITUTIONAL REQUIREMENTS.

This Act, to the extent that it regulates or restricts a right or freedom referred to in Subdivision III.3.C (Qualified Rights) of the Constitution, namely-


(a) right to freedom arbitrary search and entry conferred by Section 44 of the Constitution: and


(b) the right to privacy conferred by Section 49 of the Constitution and

(c) the right to freedom of information, conferred by Section 51 of the Constitution.

(d) the right to freedom of movement conferred by Section 52 of the Constitution.


is a law that is made for the purpose of giving effect to the public interest order and public welfare.


  1. AMENDMENT OF LONG TITLE.

The long Title to the Principal Act is amended in Paragraph (ii) the following new subparagraph;


"(iii) time limits on and the duration of appointment of an Acting Prime Minister pursuant to Section 143 (1) of the Constitution when the Prime Minister is absent from the country; and"


  1. ACTING PRIME MINISTER (AMENDMENT OF SECTION 4)

Section 4 of the Principal Act is amended by adding after Subsection (2) the following new subsection;-


"(3) After the appointment of a Minister to be Acting Prime Minister is made pursuant to Section 143(1)(c)(i) of the Constitution when the Prime Minister is absent from the country:-


(a) in the event that the Prime Minister does not return to the country and resume office within 3 months of the appointment of an Acting Prime Minister, the appointment shall cease and the office of the Prime Minister shall be deemed vacant: and


(b) the Speaker of the Parliament shall inform the Parliament of the vacancy in the office Prime Minister arising under Paragraph (a) and a new Prime Minister shall be appointed in accordance with Section 142 of the Constitution."


4 SUPENSION FROM OFFICE OF THE PRIME MINISTER
(AMENDMENT OF SECTION 6)


Section 6 of the Principal Act is amended by adding after Subsection (1) the following new subsection;-


"(1A) The medical practitioners referred in Subsection (1) may provide a join report and certification of matters referred to in Subsection (1) to the Head Of State without conducting any physical examination of the Prime Minister, if in the professional opinion of the medical practitioners, a credible medical report and certification is capable of being provided from other medical reports and clinical records from both local and overseas medical practitioners who have examined and treated the Prime Minister."


  1. COMMENCEMENT OF SECTION 2,3 AND 4.

Section 2, 3 and 4 of this Act shall be deemed to have come into operation and as all times to have had had effect on and from 1st January 2011.


  1. VALIDATION OF ELECTION OF PRIME MINISTER.

For the avoidance of doubt and by virtue of the powers conferred by Section2.3 and 4 of this Act, it is hereby declared that;-


(a) the declaration by the Speaker of the Parliament on 2 Aug 2012 that there was a vacancy in the office of Prime Minister, is not unlawful but is valid and effective and shall be treated, by virtue of Section 3 and 4 of this Act as having been lawfully and validly declared effective from the time it was declared; and

(b) the decision of Parliament on 2 Aug 2012 that there was a vacancy in the office of the Prime Minister is valid and effective and shall be treated by virtue of Section 3 and 4 of this Act as having been validly decided from the time it was declared; and

(c) the election by Parliament of a new Prime Minister Peter O'Neill on 2 Aus, 2011 is valid and effective and shall be treated by virtue of Sections 3 and 4 of this Act, as having been validly elected from the time the new Prime Minister Peter O'Neill was elected.

I hereby certify that the above is a fair print of the Prime Minister and National Executive Council (Amendment) Act 2011 which has been made by the National Parliament.
(signed)


Clerk of the National Parliament
12 December 2011


I hereby certify that the Prime Minister and National Executive Council (Amendment) Act 2011 was made by the National Parliament on 12 December, 2011, by an absolute majority in accordance with the Constitution.


(signed)
Speaker of the National Parliament.
12 December 2011.


_____________________________________


APPENDIX E


Prime Minister and National Executive Council (Amendment No.2) Act 2011.
Being an Act to amend the Prime Minister and National Executive Council Act 2002,
MADE by the National Parliament and deemed to have come into operation on and from
1 August 201


1 COMPLIANCE WITH CONSTITUTIONAL REQUIREMENTS.


This Act, to the extent that it regulates or restricts a right or freedom referred to in Subdivision III.3.C ( Qualified Rights) of the Constitution, namely-


(a) the right to freedom from arbitrary search and entry conferred by Section 44 of the Constitution; and

(b) the right to privacy conferred by Section 49 of the Constitution.

(c) the right to freedom of information conferred by Section 51of the Constitution,

(d) the right to freedom of movement conferred by Section 52 of the Constitution,

is a law that is made for the purpose of giving effect to the public interest in public order and public welfare.


2 AMENDMENT OF LONG TITLE.


The Long Title to the Principal Act is amended by adding after Paragraph (a) the following new Paragraph:-


"(ba) to provide for a maximum age for a member of Parliament to hold the office of the Prime Minister pursuant to section 142 of the Constitution".


3 NEW SECTION 6A.


The Principal Act is amendment by adding after Section 6 the following new section:-


"6A. AGE LIMIT OF PRIME MINISTER


A member of Parliament is not qualified to be or to remain, Prime Minister if he has attained the age of 72 years"


4 NEW SECTION.


The Principal Act is amended by adding after Section 6A, the following new section;-


"6B VALIDATION OF ACTIONS AND DECISIONS OF THE NEW GOVERNMENT.


"For the avoidance of doubt and by virtue of the powers conferred by Section 2, 3 and 4 of the Prime Minister and National Executive Council (Amendment) Act 2011, actions taken and decisions made following the election of the Prime Minister referred to in Section 6(c) of the Prime Minister and National Executive Council (Amendment) Act 2011 by-


(a) the Prime Minister; or
(b) the National Executive Council of which the Prime Minister is the chairman appointed by the Head of State acting on the advice of the Prime Minister; or
(c) individual Ministers who are members of the National Executive Council; or
(d) government agencies and officers of the Public Service acting on the authority of the persons or body referred to in Paragraphs (a), ( b) and (c),

shall be treat by virtue of section 3 of the Prime Minister and National Executive Council (Amendment) Act 2011 as having or made from the time they were taken or made."


I hereby certify that the above is a fair print of the Prime Minister and National Executive Council (Amendment) Act 2011 which has been made by the National Parliament.
(signed)
Clerk of the National Parliament
28 December 2011


I hereby certify that the Prime Minister and National Executive Council (Amendment) Act 2011 was made by the National Parliament on 21 December, 2011, by an absolute majority in accordance with the Constitution.
(signed)
Speaker of the National Parliament.
28 December 2011.


___________________________________


SALIKA DEP. CJ: Declined to publish his opinion for reasons expressed in Court.
____________________________________


SAKORA J: Declined to publish his opinion for reasons expressed in Court.


____________________________________


  1. KIRRIWOM, J: Hon. Dr. Allan Marat, MP, Attorney-General and Minister for Justice in the O'Neill/Namah Government an authority referred to in subsection (3)(c) and Hon Jefferey Nape, Speaker of Parliament and Parliament, both authorities mentioned in subsection (3)(a) and (f) respectively of Section 19 of the Constitution filed two related Constitutional References seeking the Supreme Court's opinion on the legitimacy of O'Neill/Namah Government following the Supreme Court ruling on 12th December, 2011 in the Reference Pursuant to s.19 of the Constitution and Special Reference by East Sepik Provincial Executive [2011] SCR 3 of 2011 – SC 1154 (hereafter SCR 3 of 2011) of the events of 2nd August, 2011.
  2. The factual background to the References is set out in the statement of agreed facts that accompany this judgment in the Appendix marked (B). But those are only part of the facts as other facts relevant to the case are deposed to in sworn affidavits of the interveners and other facts unfolded live as this Court was seized of the case in SCR 3 of 2011 up to the time the judgment was delivered and since these two references were filed and continued live right up to the delivery of this judgment which is also not without its share of action.
  3. The decision in that reference invalidated the removal of Sir Michael Somare as Prime Minister by the O'Neill/Namah government and at the same time declared unconstitutional the appointment of Hon Peter O'Neill as the successor Prime Minister.
  4. In anticipation of negative or unfavourable finding or opinion of the Supreme Court in the Constitutional Reference SCR 3 of 2011 pending for decision before the Court in respect of its ascension to power on 2nd August, 2011, the O'Neill/Namah Government pre-emptively moved and passed a motion on the floor of Parliament on 9th December, 2011[1] retrospectively rescinding the Parliament's previous decision made on 17th May 2011 granting leave of absence to Grand Chief Sir Michael Somare, the Prime Minister on medical grounds while he was overseas undergoing surgical operations.
  5. On Monday 12th December, 2011 when the Supreme Court handed down its 3-2 majority decision, either pre-emptively or as a consequence of that ruling, the O'Neill/Namah Government passed an amendment to the Prime Minister and National Executive Council Act 2002, namely Prime Minister and National Executive Council (Amendment) Act 2011 (First Amendment) which was certified by the Speaker on the same day.
  6. On 21st December, 2011 the Parliament passed the Prime Minister and National Executive Council (Amendment No.2) Act 2011 (Second Amendment) which was certified on 28th December, 2011. This move was one of a number of moves or steps instigated by the O'Neill/Namah government to take corrective measures to validate the regime's ascension to power on 2nd August, 2011. The process used to effect that change was fully canvassed in the judgment of the majority in SCR 3 of 2011[2]. The two Acts were passed to take effect retrospectively, the First Amendment from 1st January, 2011 and the Second Amendment from 1st August, 2011. In fact both Acts were passed to empower the Parliament to take reprisal action by passing laws contradicting the decision of the Supreme Court and according legitimacy to 2nd August, 2011 take-over of Government headed by Hon Peter O'Neill MP.
  7. Following the Supreme Court ruling the Grand Chief Sir Michael Somare appointed his cabinet from the remaining coalition members who did not cross the floor and dismissed those who moved to the Opposition on 2nd August, 2011 to vote him out of office. The ratification of these actions are published in the National Gazette number G390[3] dated 13th December, 2011 which included several significant appointments in the Public Service in respect of the Police Commissioner, Commander of Defence Force, Secretary for Finance and the rest. However, his physical return to the Parliament Chamber to assume the Prime Minister's chair in compliance with the Supreme Court opinion was prevented by Members of Parliament in O'Neill/Namah regime to the extent of using the Police Force which was even divided. But despite all the confusion of having two Police Commissioners giving conflicting orders, the men and women of the disciplined forces remained calm and dedicated throughout to this day. These facts have no prominence in the statement of agreed facts in the two references but are alluded to in paragraphs (p)[4] and (q)[5] of the statement of agreed facts set out in Appendix B annexed to this judgment.
  8. The Attorney General in the O'Neill/Namah Government was prompted and later joined by Parliament, to file these references because of this total confusion of having two Prime Ministers, two Ministers, two Departmental Heads, two of this and two of that while the public opinion was split since the Supreme Court ruling as to who was the Chief Executive of this country and which was the rightful government. It is also public knowledge that even Sir Arnold Amet, the Attorney General in Somare-led faction also attempted to file proceedings in Court to seek Supreme Court guidance and direction.
  9. This is the background from which these references spring. Only the Supreme Court as the apex court, or referred to as the Constitutional Court in South Africa since the fall of the apartheid system, can advise whether the steps or measures taken by the O'Neill/Namah led government to correct or legitimise its status are constitutionally valid. These references are in effect asking whether the decisions and actions of the Parliament in rescinding its earlier resolution, and thereafter passing amendments to the Prime Minister and National Executive Council Act 2002 on two separate occasions are constitutionally valid. And equally important is whether these amendments validate the status of the current Government. To not approach these references in this way is akin to the Court conceding to the referrers' belief that Parliament had invalidated the decision in SCR 3 of 2011 by the measures it took since taking office and therefore the decision is of no force or effect when the principles of constitutional democracy and constitutional framework and structure of our system of government are not consistent with the view they advanced.
  10. The reference by Dr Marat (hereafter SCR 1 of 2012) seeks, inter alia, the Court's opinion on the constitutionality of the decisions of the Parliament since 9th December, 2011 where it rescinded its earlier decision granting leave to Sir Michael Somare to be absent from attending Parliament sitting for the whole of May 2011 while he was in Singapore Raffles Hospital. That rescission is to have retrospective effect to 1st January 2011 which means that with that leave withdrawn, Sir Michael would have missed three consecutive meetings and therefore his seat in Parliament is deemed to have become vacant under section 104(2)(d) of the Constitution. This section reads:

"(2) The seat of a member of the Parliament becomes vacant—

(a) ....; or

(d) if he is absent, without leave of the Parliament, during the whole of three consecutive meetings of the Parliament unless Parliament decides to waive this rule upon satisfactory reasons being given; or..... "


  1. The reference also seeks the opinion of the Supreme Court on the Parliament's power to pass the Prime Minister and National Executive Council (Amendment) Act 2011 and the Prime Minister and National Executive Council (Amendment No.2) Act 2011, both referred to above as First Amendment and Second Amendment respectively. The First Amendment covers firstly, the limitation on the period of appointment of Acting Prime Minister, secondly, validation of appointment of Peter O'Neill as Prime Minister on 2nd August, 2011and thirdly, validation of all things done in Parliament and thereafter since 2nd August, 2011 notwithstanding the decision of the Supreme Court in SCR 3 of 2011.
  2. Second Amendment also is aimed at two things, firstly, it restricts the eligible age of Prime Minister to 72 years and secondly, validation of acts and decisions of members of the executive government since 1st August, 2011.
  3. The special reference by the Parliament (hereafter SCR 2 of 2012) seeks the Supreme Court's opinion as to the powers of the Parliament to rescind its earlier decision that granted leave to Sir Michael Somare to be absent from the May meeting of the Parliament and to pass the Prime Minister and National Executive Council (Amendment ) Act 2012.
  4. Detailed facts for purposes of these two references are set out in the succeeding paragraphs. These facts provide background information or backdrop from which the questions in both these references have been formulated. The questions are also set out in the judgment. But to put into perspective the origin of these proceedings involving the same parties and the same dispute, it is helpful to appreciate the simple history of the constitutional issue that arose and was determined by the Supreme Court comprising the same bench but has not ended for the reasons that become obvious in the judgment.
  5. On 2nd August, 2011, almost nine months remaining before the National Elections in June 2012, while the Prime Minister Grand Chief Sir Michael Somare was seeking urgent medical attention in a Singapore Hospital, the Parliament removed him as Prime Minister and elected Hon Peter O'Neill as the successor Prime Minister.
  6. This surprise turn of events was devoid of power or authority in the Constitution in view of the fact that under Constitution section 142(5)(a) and section 145(2)(a) a vote of no confidence against the Prime Minister could not be entertained within the last 12 months before the fifth anniversary of the day fixed for the return of the writs for the previous general election. This legal position was pretty well known at the time of this take-over.
  7. The East Sepik Provincial Executive Council, an authority referred to in section 19(3) of the Constitution filed a Constitutional Reference on 5th August, 2011 seeking opinion of the Supreme Court on the constitutionality of this change of government on the eve of general elections.
  8. The Supreme Court presided by the same bench as in these two references, heard arguments from all the parties and after careful deliberations ruled by majority decision of three to two that the action by the Parliament was unconstitutional and whatever unfolded as the consequence of that unconstitutional act was void and of no effect.
  9. In the ordinary common sense understanding of the flow of things as the consequence of that ruling of the Supreme Court, the status quo was restored. This would have meant that Sir Michael Somare was returned as the Prime Minister. It is quite mischievous and incorrect for the lawyers for the Attorney General to say at paragraph (r)[6] of the statement of facts that "at no stage following the Supreme Court decision of 12th December, 2012 was Sir Michael Somare re-appointed or sworn in as Prime Minister by the Governor General."
  10. Sir Michael Somare did not have to be re-appointed as Prime Minister when he was the Prime Minister as confirmed by the Supreme Court. There was no need for that as he was the one and only legitimate Prime Minister appointed following the return of writ in the last General Election and continued to remain as such. The 2nd August, 2011 action by Parliament was an attempt to oust him as Prime Minister but that act was declared unconstitutional by the Court so his status had not changed.
  11. A person can get elected and appointed more than once and such appointments can be gazetted repeatedly over a number of times as happened in this case scenario since 2nd August, 2011 but that does not make one more Prime Minister than the other. In other words, the fact that Peter O'Neill was appointed and gazetted two or more times as Prime Minister within a span of three months does not make him the legitimate Prime Minister more than Sir Michael Somare who was appointed only once in accordance with the requirements of the Constitution and by virtue of the Constitution continues to remain in office as determined by the Supreme Court.
  12. Serious misconception of the decision of the Court by those concerned led to grave injustices being committed against the rule of law and the Constitution when Parliament was elevated way beyond the Constitution as the supreme being or authority and as having reserve powers to do anything outside the Constitution when in reality, it did not have such powers as discussed further in the judgment.
  13. In their resolve to remain in government regardless of the majority opinion of the Supreme Court, the protagonists for change criticised the Supreme Court, if not so much for its opinion, it was the consequential orders that were issued. But orders normally follow the decision of the Court from any logical way of thinking but both lawyers and lawyers cum politicians saw otherwise. I set out the terms of the Order in this early part of the judgment to set the stage for subsequent discussion on it. It reads as follows:

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


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


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


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


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


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

forthwith.


  1. Again just to set the stage for further discussion later in the judgment, in my respectful opinion, properly advised Parliament and also given a neutral and impartial Speaker of Parliament, irrespective of paragraph 6 of the Order above, Parliament ought to have convened at the call of the Speaker as the head of the Parliament for the Members to deal with the decision of the Court. As an independent arm of the Government, also a creature of the Constitution, Parliament, through the Speaker was obliged by the Constitution to recall the Parliament to attend to this Order.
  2. Without descending into the arena of Parliament's law-making powers, I take note at this juncture that the Constitution defines the roles and functions of the Speaker under section 108 which, inter alia, subject to and in accordance with Constitutional Laws, Acts of Parliament and the Standing Orders of the Parliament, are to uphold the dignity of the Parliament, maintain order in it, regulate its proceedings and administer its affairs. By virtue of this responsibility, he had that mandate to recall the house to address that matter, if it was minded to obey the court ruling or decision. But it was obvious from day one that the Speaker was part of the protagonists determined on the change in the government, and the court decision was an impediment or a nuisance.
  3. I discuss this Court Order later in the judgment in several different contexts in the succeeding paragraphs, firstly, in the context of section 19 (1) and (2) of the Constitution and secondly, as a constitutional imperative under section 155(6) and under the common law as judicial pronouncement or command of the court that must be obeyed.
  4. I briefly address towards the end of the judgment both referrers' lawyers very forceful criticisms of the Supreme Court of exceeding its jurisdiction in violation of the basic structure principle which I assume they are referring to the separation of powers more specifically stated in section 99(3) of the Constitution.
  5. Lawyer for the Parliament argued that the Supreme Court was not properly assisted by the lawyers who had carriage of the case in SCR 3 of 2011 on behalf of the referrer and that was the reason the same parties are back in court in this proceeding which I take it to mean in these two references. It is not the lawyers' call to be presumptuous about whose opinion is right and who is wrong or who did it right and who did it wrongly when adjudication is a matter for the courts under section 158 of the Constitution.
  6. Be that as it may, however, there is a view maintained by counsel for the referrer in SCR 2 of 2012 that the court proceeded to judgment on the facts as they existed in August 2011 when there was already a change in the factual circumstances on 9th December, 2011 which would have impacted heavily on the outcome or decision of the Court if this change was brought to the attention of the Court earlier. These were the arguments that Mr Donigi meant to advance in support of his slip rule application that failed but addressing the arguments raised will also be responding to most of the issues in both references. I will then examine the legality of Parliament's decision to rescind its 17 May 2011 decision.
  7. The thrust of this argument is contained in the various paragraphs that I make references to in Mr Donigi's written submission. In paragraph 4 he writes:

"This is an unusual reference by the Parliament. In most cases, it is the aggrieved party that desires to question the validity of a law to file an application in court. Parliament had filed this Reference because of the constitutional crisis established by the ruling of this Court in SCR 3 of 2011. The ruling itself did not create a crisis. It is the orders issued by the court followed by the actions taken by the beneficiaries of the court orders that created the constitutional crisis. Parliament's Reference is therefore filed in the hope of finding a solution to this crisis. This much is clear in the statement delivered by the leader of Government Business in Parliament seeking endorsement of the constitutional questions referred to this Court."


  1. Part of this statement was extracted from the Draft Hansard and reproduced verbatim in Mr Donigi's written submission. Nonetheless, now that the reason and the source for this constitutional crisis is explained in counsel's submission, there is one correction to be made with respect to the above assertion. It must be clearly understood that SCR 3 of 2011 was not concerned with the question of constitutional validity of a law. But rather it was concerned with the lawfulness or validity of the decision of the Parliament that dismissed Sir Michael as Prime Minister and appointed Peter O'Neill as the successor Prime Minister in the context of the Constitution. It was concerned with the validity of a resolution or decision of the Parliament when determined in the context of the Constitution section 142(2), the authority that was relied upon to move the motion.
  2. There is a distinction and big difference between validity of a law, be it a provision of a Constitutional law or an Act of Parliament or an entire legislation or a proposed law and validity or lawfulness of an act or omission against entrenched or guaranteed rights of citizens by anyone or any agents of the State, individual or corporate, public or private when examined against Constitutional guarantees. In SCR 3 of 2011, that is what happened as far as Sir Michael Somare is concerned, which the Supreme Court was faced with, not validity of a law but the validity of the act of removing Sir Michael Somare and electing Peter O'Neill as successor Prime Minister under our constitutional framework of government..
  3. In paragraph 28 of his written submission, the following continues:

"Be that as it may, let us review what transpired on 12 December 2012 that got us into this crisis. In SCR 3 of 2011, this court deliberated on a set of facts as they exist (sic) in August 2011. It did not deliberate on the changed facts as at 9 and 12 December, 2011.its rulings and decisions are inherently affected by the changed facts and it was in our submission the duty of the lawyers at that time to draw the attention of the court to the changed circumstances. There were in our submission two courses that the court could have taken. The court could have shelved its rulings and declare a mistrial. Second, the court could have abdicated its ruling and ask (sic) the Referror to file new evidence and call for additional submissions based on changed set of facts."


  1. Mr Donigi is entitled to his views but I need persuasion by properly researched materials and not opinion generated from one's intuition and experience particularly when he cannot get this simple legal point correct such as the decision of the Parliament of 9th December, 2011 and its interpretation and application of section 104(2)(d) of the Constitution as determined by the Court on 12th December, 2011 irrespective of what the factual circumstances may be ie regardless of whether Sir Michael Somare did or did not miss the whole of three consecutive meetings of the Parliament. The question of his removal even if he was absent for more than three months, maybe even a year, there is no automatic dismissal. Only the National Court has the jurisdiction to determine this question[7].
  2. It is seriously questionable whether the changes in the factual circumstances to the case where Parliament rescinded its earlier decision on 9th December, 2011 that was deliberately perpetrated or orchestrated by another arm of the government (to circumvent or influence the proceedings before the Court or while the Court was seized of the matter or for whatever reason) could have been cordially welcomed by the five judges that constituted the bench and were in deliberation or finalising their judgments on the reference. Speaking for myself, I certainly would not have gone for any of those suggestions made by Mr Donigi for the sake of protecting the integrity of the judicial process and the legal system. Any act or omission occurring outside the Court having direct bearing on any case in progress is in my respectful opinion an interference with the Court exercising its constitutional functions and contemptuous. It must never be allowed to happen in the first place.
  3. Paragraph 34 states:

"Public interest in finality of litigation


There is no doubt that there is substantial public interest in the finality of litigation. This constitutional crisis was created by the ruling in SCR 3 of 2011 delivered by the Court on (sic) 12 December, 2011 followed by orders which were contested by Parliament and this nation has been on this impasse since then. .."


  1. I agree with counsel that finality in litigation is what public wants as it is in their best interest to move on and not be caught in that legal web for too long costing them a fortune in so many respects. What I do not agree with Counsel is that this perceived constitutional crisis and the impasse he talks about being attributed to the court. That is a matter of opinion. This conundrum was not created by the ruling in SCR 3 of 2011 that was delivered on 12th December, 2011. That is what the lawyers advising the Parliament and lawyer-cum politicians want the public and the nation to believe. The crisis generated following the decision in SCR 3 of 2011 was the disobedience of the court order issued by the Court on 12th December, 2011 following its decision; disobedience that flowed from the decision on advice from within and outside the Parliament when the Speaker failed to convene Parliament to deal with the Court Order. This is not the first time that the Speaker and the Parliament received an Order like this from the Supreme Court[8] or even the National Court and I will discuss more on this later in the judgment.
  2. Mr Donigi and the team acting for the referrers and interveners supporting the referrers must be absolutely certain on both facts and the law in respect of their assertions that the Court is to be blamed for the current crisis and not make opinionated submissions on sensitive issues of serious legal and constitutional significance with serious connotations that has had everyone wondering what went wrong or who is at fault, by pointing fingers at anyone, let alone the Court. And this caution is necessary particularly when they cannot see or pretend not to see or do not know or pretend not to know or do not care where the rest of their fingers are pointing. As far as I am concerned, it is the sworn duty of all lawyers to uphold the Constitution at all times which is the oath that as lawyers we all took at the time of our admissions to the bar and particularly as Officers of the Court to protect and safeguard the integrity of the legal system and the judicial process or the Judiciary for that matter in the advice that we give to clients in or under whatever circumstances. And the duty is far greater, when it comes to compliance with and obedience of Court orders, such as to arrest or prevent potential or volatile situations likely to lead to or result in avoidable conflicts between the three arms of government when there are other avenues open. I will discuss this more when I address both the constitutional and common law duty of all persons and all lawyers alike to advise their clients to obey court orders however disagreeable they feel about them, unless set aside.
  3. Then in paragraph 35 it is submitted that as far as the Parliament was concerned or in the opinion of the Parliament, the Court had no power or gave itself power it did not have to order it to reinstate Sir Michael Somare as the Prime Minister and thereby caused injustice. If I understand this statement correctly, my understanding of it is that my role as judicial officer appointed under section 164 of the Constitution and mandated by sections 155 and 158 of the Constitution to exercise judicial authority of the People is removed because Parliament has now dispossessed me of that responsibility of interpreting and applying the laws of this country by Parliament taking over that function from the Courts and becoming what some countries call the High Court of Parliament[9]where both the judicial and legislative functions are rolled in one. Is this why Parliament has appointed itself as the High Court of Parliament and gave itself the power it does not have under the Constitution to review the decision of the Supreme Court? The full text of the submission reads:

"On the other hand, any injustice should be corrected

The perceived injustice is that the Court had given itself powers Parliament says it does not have under the Constitution. Parliament's view is that it had no problems with the ruling of the court in respect to a set of facts as they existed in August 2011 but the court had not taken into account events of Parliament on 9 December 2011 and therefore cannot hand down its orders to reinstate someone who is not a Member of Parliament by operation of law on 12 December 2011. This injustice which has fuelled this Constitutional crisis must be corrected.


  1. In that passage above counsel seems to be overly confident that the Parliament's rescission of 17th May, 2011 decision granting leave to Sir Michael with retrospective effect to 1 January 2011 well and truly reversed the entire situation as far as section 104(2)(d) was concerned; that Sir Michael Somare by operation of law was no longer a Member of Parliament. Therefore the injustice of the order is that as an ordinary citizen he could not be reinstated by the Court on 12th December, 2011 as Prime Minister. This is the injustice that must be corrected he argues.
  2. I am repeating myself again. Counsel must read the decision of the Court in SCR 3 of 2011, which is crystal clear now according to both the Court Order paragraphs 3 and 4 and the opinion of the majority in which this legal question has already been answered and therefore is res judicata. Any question of removal of a Member of Parliament for being absent in three consecutive meetings of the Parliament can only be determined by the National Court[10]. There would be injustice caused as had happened already here in this case if such power is exercised unilaterally when vested in the Parliament. That is what the Constitution is trying to avoid by vesting this power in the National Court. Therefore there is no injustice to correct here.
  3. And in paragraph 36 this lengthy written address is made, repeating the same argument in some areas which I restate below in case I am accused of misquoting him:

"The court must have proceeded on a misapprehension of fact or law


It is submitted the court did not proceed on a misapprehension of facts as they existed in August 2011. The Court assumed that the facts as they existed on 12 December 2011 were the same as in August 2011 when in fact they were not. On 9 December 2011, Parliament rescinded its decision n May 2011 granting Sir Michael Somare leave of absence from parliament for the May sittings of the Supreme Court. This decision to rescind its previous decision was not brought to the attention of the Court on 12 December 2011 and the court assumed the set of facts as they existed in August had not changed. The decision by parliament on 9 December 2012 was a substantial change in the circumstances concerning the outcome of the Supreme Court reference. Failure to bring this new set of facts to the court by lawyers contributed to a substantial miscarriage of justice which has fuelled this constitutional crisis ever since 12 December 2011.In the event, the decision by Parliament on 9 December 2011 has the effect of terminating Sir Michael Somare as a member of parliament as at 9 December 2011 and accordingly; leaving aside the legal and constitutional question of whether the court has a power to issue orders in a Section 19 Reference, any order of court on 12 December 2011 to reinstate Sir Michael Somare as the Prime Minister of Papua New Guinea when he was not a member of Parliament by operation of law on 9 December 2011, is a nullity."


  1. There are two things that I wish to comment on here in respect of this argument. The first is that and I am repeating myself that every paragraph in the Court Order from 1 to 6 come from the opinion of the majority decision in SCR 3 of 2011. They are not aliens from some other world outside this hemisphere. The order is an integral part of the opinion of the Court. One who reads the majority opinion will find that every paragraph springs out of that judgment, not out of the sky. So I don't know what the fuss is all about. The second point and very significant of note here is that whichever set of facts were before the Supreme Court on 12th December, 2011 when the question of Sir Michael Somare's absence from three consecutive meetings of Parliament were addressed by the Court would not have made the slightest difference in the opinion of the Court. That was a legal question based on section 104(2)(d) of the Constitution and the opinion given was based on construction of that section while applying it to the given circumstances in which Sir Michael Somare was placed.
  2. That decision was not based on any peculiar facts prevailing at the time the court was seized of the case before it. However, if the referrers can show that since that decision new facts have emerged that did not support what was then presented for example Sir Michael Somare had misled or deceived the Parliament in that he was not sick at all, that might provide sound basis for such a decision. There is no such evidence to warrant Parliament rescinding its earlier decision granting leave. The only reason according to the Hansards for 9th December, 2011 is that Sir Michael failed to disclose to the Parliament the true extent of his medical ailment which was far more grave and serious than they were led to believe.
  3. The above argument cannot hold much water because it was always known during the hearing in SCR 3 of 2011 that Sir Michael was very sick and based on the reports that became available at the time and based on which the referrers who were the interveners in support of O'Neill/Namah government, claimed that Sir Michael was insane. But he proved them wrong by fully recovering back to health and now they have taken all unimaginable measures to keep him out of action or out of politics.
  4. And in paragraph 37 of his submission, counsel for the Parliament blames the lawyer for the referrer in SCR 3 of 2011 for the Court being left uninformed of what happened in Parliament on 9th December, 2011. The paragraph reads:

"The misapprehension must not be of the applicant's making


The misapprehension was not of the Applicant's making. The Applicant was not the Section 19 Referror in SCR No. 3 of 2011 and the issue of making the orders of the Court was not drawn to the attention of the Court by the Referror that has the primary carriage of the Constitutional Reference."


  1. On this premise, Mr Donigi contends that only if the Supreme Court knew what Parliament did when it happened, it would not have arrived at the decision it did. And he lays the blame squarely on the lawyers, especially the lawyers for the referrer in SCR 3 of 2011. The irony of this argument is that what the Parliament was doing could not have happened without the knowledge and notice of its own lawyers and those who were in the same team with the Parliament including the Attorney General Dr Allan Marat referrer one in this case who were involved in the same case in court. Were they not better placed than the lawyers for the referrer to be privy to this information to disclose to the Court at the time of its happening? Or was Parliament receiving separate legal advice from separate team of lawyers in relation to what was happening in Parliament while a different team of lawyers were representing it in court in SCR 3 of 2011? And the same question can be asked of legal representation for the Attorney General and those interveners in this reference who were also involved in SCR 3 of 2011? That must have been day of harvest for the lawyers engaged by Parliament at the People's expense then and now. I don't agree with this mischievous argument for whatever it is worth. It is the duty of all counsel to assist the court, if a matter was that important for the court to know. It would seem that counsel in that case were probably wiser to not have bothered the court with extraneous matter that had no relevance to the case before the Court. I have already expressed how I would have dealt with the interference.
  2. Then in paragraph 38 this is what is submitted:

"The purpose is not to allow rehashing of arguments already raised


There is no rehashing of arguments already raised before the court in SCR No. 3 of 2011. The set of facts concerning deliberations by Parliament on 9 December were not brought to the attention of the court on 12 December 2011 so as to obviate a need for the delivery of the court's judgment and ensuing orders."


  1. I have already explained that as far as I was concerned, any attempt to bring in new facts on the eve of the Court delivering its decision as the result of 9th December, 2011 decision of the Parliament would not have got my blessing for the reasons I have already given. Finality of litigation required that any case founded on any specific set of facts must be determined on those facts. If the facts changed during the life of that case or after judgment, in my view, it is the duty of the party that caused the change to go to court and pursue an appropriate application for necessary orders, whatever they maybe. It is not fair to cause an avalanche or create a storm in a tea cup and blame others for not knowing or not telling the court about what he knows.
  2. And in paragraph 39 the passage reads:

"The purpose is not to allow new arguments that could have been put to the court before


Again, the set of facts concerning deliberations of Parliament on 9 December 2011 were not part of the facts before the court and the court gave its rulings based on facts that existed prior to 9 December 2011. The political landscape in PNG at any material time is shifting and the court cannot assume that the landscape will remain static. It was therefore not proper for the court to make such assumptions leading to the making of orders that cannot be enforced."


  1. This argument is repetitive but couched in a different angle regarding changing political climate that the court must always be wary of. Again I disagree with the contention that the Court made assumptions leading to the making of the orders which it is submitted cannot be enforced. This submission is incorrect in that the court orders are not based on assumptions but on the facts before it. Secondly I resist any suggestion that the court orders cannot be enforced because this is counsel's opinion which is inconsistent with the decision of the court in SCR 3 of 2011 and wrong in law. I will come back to this later in the judgment.
  2. I have read Mr Donigi's submissions from the first to the last page and in my opinion what I can write in my judgment as far as the main issues in both references are concerned can be achieved through responding to his arguments in the way his written extract. So returning now to his submissions once more, I set out paragraph 40 below:

"The court must, before setting aside its previous decision, be satisfied that it made a clear and manifest, not an arguable, error of law or fact on a critical issue


It is submitted that the court should be readily satisfied that it had made a clear and manifest error of law and fact on the critical issue of whether or not it had the power to legally reinstate a person who had ceased by operation of law to hold the office of a member of parliament into the office of the Prime Minister of Papua New Guinea in the face of Section 141 of the Constitution.


  1. Here again Counsel assumed that the Court would accept his submission on the effect of rescission on 9th December, 2011. Speaking for myself this submission is unmeritorious for reasons already given and I reject it.
  2. The next paragraph is 41:

"Factual situation in SCR 3 of 2011


It is clear that the facts of Parliamentary decisions of 9 December 2011 were not brought to the attention of the court. As a result the court made a ruling that cannot be enforced or effected or even recognised in law. Its orders are non-functional and are ineffectual. It has brought itself into conflict with parliament."


  1. I disagree with Mr Donigi's various assertions in his submission. Firstly, he is repeating himself in respect of lack of advice to court on the change in the factual circumstances regarding leave previously given to Sir Michael Somare having been withdrawn. Secondly I disagree with his assertion that the court's ruling cannot be enforced, cannot be effected or cannot even be recognised in law. This is clearly an erroneous statement in law because as long as that ruling remains, it must be obeyed.[11] I don't know, with greatest respect, where counsel has borrowed the phrases 'non-functional' and 'ineffectual' from relative to compliance with a ruling of the court is concerned. A court ruling and for that matter court order may become obsolete or redundant if parties disrespect it or shun it with deliberate contempt. And finally if this Order has come into conflict with the Parliament, it is because that is the way Counsel sees it and wants to see it that way when such conflict could have easily been avoided if as lawyer concerned about the backlash of any conflict counsel was mindful of defending the court and the integrity of the judicial process and the Constitution. I discuss this further in the succeeding paragraphs.
  2. It is interesting that Mr Donigi raises this next question. And the question is set out in paragraph 42 and it reads:

"Can parliament be held to be in contempt of court?

Parliament cannot be held to be in contempt of court by reason of Section 115 of the Constitution. We recommend paragraphs 202 – 270 inclusive of the ruling in OLIPPAC case3 which sets out the history and the rights, privileges and immunities of members of Parliament. We commend them wholly to this court. This right and privilege we submit cannot be made subject to an order of this court."


  1. I do not know whether Mr Donigi is only testing the waters when he throws this question in because the issue of contempt by Parliament is a separate case as I understand but was put on hold pending hearing of these references. But since Mr Donigi has raised it in the context of his argument which is appropriate in the circumstances, I am duty-bound to respond and address the question.
  2. The independence of the Parliament and the rights and privileges of Members of Parliament as prescribed under section 115 and discussed exhaustively in the Section 19 Reference and Reference by Executive of Fly River Provincial Government on Organic Law on Integrity of Political Parties and Candidates [2010] SC 1057 (OLIPPAC) is fully noted. I have no difficulty with that and I fully endorse those views expressed by the Court. The Court in this case reached its opinion in accordance with and in the spirit of Parliamentary system of government with a written Constitution that Papua New Guinea has adopted on Independence with a unique position different to that of England and Australia.
  3. It was envisaged by the CPC that in the process of discharging its constitutional functions, there will be situations where the Courts will need to make difficult decisions affecting socio-political standings and rights of citizens. And it was stressed that faced with such challenges, the courts must not shy away from their duties. Keeping to that counsel from the great historians who worked tirelessly to put together the report that formed the basis of our Constitution, the Supreme Court undertook its task and delivered its decision to this twenty-first century Parliament on the understanding that maturity will prevail and the judgment will be dealt with in the usual way that the Parliament deals with any matter that falls on its lap or that of the Speaker as the head of the Legislature in the usual manner by observing the Constitution, the Standing Orders and the Parliamentary conventions.
  4. If the Speaker was as impartial and unbiased as a constitutional office holder should be, this is an issue that he should have allowed to be addressed on the floor of the Parliament by complying with the Court Order and calling the Parliament into session where Grand Chief Sir Michael Somare ought to have been allowed to take his seat in Parliament as directed by the Court, and there, and only in the Parliament Chamber the Speaker could have umpired the proceedings to see where the tide went. Members who were already frustrated for change in the leadership and had crossed the floor to make that change during his absence having already crossed the floor could well have remained with the current O'Neill/Namah camp where the number was. Power to rule rests with the majority which is the basic principle of democracy and that strength in any Parliamentary system of government is only tested in the floor of Parliament irrespective of whether it is the Parliament or the Constitution that is supreme. Given the overwhelming support already given, it would not have been that difficult for the current Government to maintain that numerical strength if proper process was followed, in my opinion.
  5. Expecting this of the Speaker as a constitutional office holder who was the head of the Legislature to use his independent discretion with all the processes clearly articulated in the Constitution, Organic Laws, Acts of Parliament and Standing Orders of the Parliament, to do the right thing is not offending any law in the Constitution or anywhere. Section 115 of the Constitution has no application because there is not the slightest suggestion that the Members must act in any particular way as the Court ordered. The Court had announced its opinion based on its interpretation of the Constitution in the light of what transpired on 2nd August, 2011. The least that the Speaker could have done was convene the Parliament and let Sir Michael Somare take the chair in the Government side and let the process take its own course. How the Members aligned themselves, that was their prerogative, the Court would have nothing to do with that. Any prudent lawyer wanting to avoid a confrontational approach would have given such advice.
  6. Nonetheless, that was the baby in the bath-water thrown out the window because of pride, egoism, arrogance and bad advice. When this peaceful and orderly option was available to deal with this highly political and sensitive issue, Parliament and their lawyers opted for a confrontational approach, treating the highest court with contempt in such manner never seen in this country since Independence. Mr Donigi's thesis on ego, the rule of law and the ethics of the rule of law could well become handy here. This is where it mattered most. If egoism did not lead right-minded sensible-thinking people astray from rational and logical reasoning, a more responsible decision could have been made and this crisis could have been averted. When the sum total of all that happened since the decision of the Court on 12th December, 2011 is added up, the ball bounces into the lawyers' court. They have recklessly approached the whole issue for their own selfish gains and not in the best interest of the nation by not ensuring that any likelihood of collision between different arms of government was minimised or prevented.
  7. The same argument is repeated in paragraph 43 of his submissions. And the last part of his submission covered in paras 44 – 49, he summarises with two suggestions:
  8. He further submits that:
  9. Mr Donigi submits that the conclusion he suggested above would "save the face for all concerned and restore the public perception of judicial impartiality and integrity of the judicial system". This statement is offensive.
  10. There was no slip in this case and this argument has no merits for the reasons already given including res judicata. Mr Donigi needs to read the Court's decision in SCR 3 of 2011 in the context of 9th December, 2011 decision of Parliament. Then he can appreciate what the correct legal position is. As far as I am concerned, I can only repeat that had Parliament been given proper legal advice, no issue of public perception of judicial impartiality and integrity of the judicial system ought to have cropped up or come under public scrutiny. They became issues because lawyers wanted to promote their own ideologies and favoured a confrontational approach or reaction to what was a straight-forward constitutional issue that could have easily been resolved by Parliament in Parliament by properly advising their clients and given an impartial and unbiased Speaker who was receptive to such advice from them.
  11. As I noted in passing in the penultimate paragraphs of my judgment in SCR 3 of 2011, the Speaker's absence of impartiality and bias contributed enormously to the event and the final outcome of what happened on the floor of Parliament on 2nd August, 2011. And I reiterate the same observation here that the Speaker's continuous behaviour and conduct since 2nd August, 2011 and thereafter perpetuated continuation of this tirade of conundrum that had the Court on the receiving end of the Executive and Parliament all throughout since this whole saga began.
  12. Most lawyers will appreciate that there was not even once in the history of this country and the judicial and legal system where the Chief Justice of the country who is chairing the Supreme Court in an important constitutional case is called to step down, recuse or disqualify himself on very baseless and frivolous grounds. And it was not just once, it was repeatedly pursued in different guises including one Cabinet decision that suspended him and a leadership tribunal appointed to deal with him on another set of vexatious and unfounded allegations but fell flat on its face. And when that collapsed another last minute attempt by the successor Prime Minister to again call for his recusal relying on incredible allegations on the face of the affidavits that could not hold up in court under the rules of evidence. Such was the trauma and persistent attacks on the judiciary while the Supreme Court was seized of the matter in SCR 3 of 2011 and while the hearing was in progress. If that is not evidence of interference with the judiciary while the Supreme Court is seized of an important constitutional case and clear breach of separation of powers by the Executive, I am baffled and not to mention the fact that these interferences continued right to and including today which severely hampered the Court's prompt delivery of its opinion on these two references. Under normal circumstances, this decision would have been delivered within a month of the hearing.
  13. Other than paragraph 6 of the Order of the Supreme Court alluded to earlier in SCR 3 of 2011, in respect of which it is alleged that the Supreme Court had fallen into error or the Court had 'strayed' from the path, no evidence has been tendered or no instances have been clearly demonstrated as amounting to breach of separation of powers by the Supreme Court. All that we have are the bare assertions without any substantive proof of breaches of the principle of 'separation of powers'.
  14. I have difficulty appreciating the basic structure argument which I find quite hollow and shallow just as I find this fallacious assertion that the Parliament's rescission of its earlier decision of 17th May 2011 granting leave of absence to Sir Michael Somare on 9th December, 2011 effectively terminated his Membership of or in Parliament as elected representative of the People of East Sepik. Mr Donigi cannot have one and not the other. If he accepts the opinion of the Supreme Court in SCR 3 of 2011, he must accept the order which directs Parliament to return Sir Michael Somare to Prime Ministership as per paragraphs 3 and 4 of the Court Order and only in the floor of Parliament they can resolve it according to the Standing Orders of Parliament. Only the National Court[12] has the power to determine whether a Member is dismissed as result of breach of section 104(2)(d) in the Constitution.
  15. It is therefore instructive for future guidance based on the opinion of the Supreme Court to note that the change in the factual circumstances made no difference whatsoever because, unless the law was changed by a Constitutional amendment, it would have not made the slightest difference in the conclusion reached by the Court on 12th December, 2011. Even if Sir Michael did miss three consecutive meetings of Parliament, the question of his removal is open only to the National Court to determine after hearing his side of the story. And justice demands this. A People's choice and elected representative cannot be arbitrarily removed as Member at the whim of the Speaker and the Parliament or the Executive. Section 50 of the Constitution guaranteed Sir Michael that right to remain in office as the elected representative of the people of East Sepik.
  16. Returning to Mr Donigi's submission on the use of slip-rule procedure, I dismiss that argument as it is re-agitating the same issue already determined by this Court. That argument is also flawed as it is in direct contradiction with the finding or opinion of the Court in SCR 3 of 2011. The doctrine of res judicata applies.
  17. In my view, the issue to be determined is whether by enactment of Prime Minister and National Executive Council (Amendment) Act 2011 and Prime Minister and National Executive Council (Amendment No 2) Act 2011 Parliament had corrected the loophole in the Constitution where the Supreme Court had ruled that Parliament's action on 2nd August 2011 was unconstitutional because neither s.142(2) provided Parliament with power to effect change and s.145(2)(b) prohibited a vote of no confidence in the Prime Minister within 12 months before the fifth anniversary of the date fixed for the return of writs at the previous general election, notwithstanding that Parliament by majority of 70-24 voted for change. Can an unconstitutional act become constitutional and valid by ordinary legislative amendment? This is the real issue.
  18. I have divided my judgment into Part One and Part Two. Under Part One I discuss the validity of the Prime Minister and National Executive Council (Amendment) Act 2012 and Prime Minister and National Executive Council (Amendment No.2) Act 2012 under the general heading of retrospectivity and in Part Two I discuss section 19 Powers of the Court, Court Orders and Summary.
  19. The Laws or proposed laws listed below the validity of which is subject of these References are appended –see Appendix C.
  20. The relevant Constitutional provisions and laws referred to, discussed or required to be considered, interpreted and applied in respect of the two References are set out in the appendix to this judgment: see Appendix C.
  21. The questions are as set out in Appendix D

Does Parliament have power to reverse its earlier decisions pursuant to schedule 1.10 of the Constitution?


  1. The question posed for the Court is whether Parliament has power to reverse or rescind its earlier decision. And if it does, was Parliament acting within its powers to rescind its earlier decision of 17th May 2011 that granted leave to Sir Michael Somare to be absent for the May meeting of Parliament?
  2. I have already addressed this issue in the preceding paragraphs while responding to Mr Donigi's submissions in the context of slip-rule application. Following the decision of the Parliament on 2nd August, 2011 in which the Government of Sir Michael Somare was dismantled by his removal on the floor of Parliament and Peter O'Neill was appointed as Prime Minister, which the Supreme Court ruled unconstitutional ultimately and following the filing of reference by the East Sepik Provincial Executive for the Supreme Court's opinion on the constitutionality of the Parliament's actions, there appeared to be have been a race to reach the finish-line between the Supreme Court and the Parliament. The Court sat to deal with the reference; the Parliament was kind of stalking the Court sitting during that time determined to defend the change in Government that occurred on 2nd August, 2011 at any costs or regardless of what came between the two.
  3. When the court fixed 9th December, 2011 for its decision on the reference, which was adjourned to the 12th of December, 2011, the Parliament sat and passed a resolution rescinding its earlier decision in which it granted Sir Michael leave of absence to be away on medical grounds. That was an earlier resolution passed by the Parliament when it was learnt that Sir Michael was very sick and had undergone several life-threatening surgeries at Raffles Hospital Singapore.
  4. Also on 9 December, 2011 Speaker declared a vacancy of the East Sepik Provincial Seat following the rescission[13].
  5. The rescission was backdated to take effect in 1st January, 2011. The effect of this rescission is that Sir Michael was absent without leave from Parliament Session in the whole of month of May which meant that Sir Michael missed three consecutive meetings of Parliament in May, July and August 2011.
  6. The end result was that having missed three sessions of Parliament, under Section 104(2)(d) of the Constitution, Sir Michael's seat in the Parliament has become vacant. The law is expressed in these terms:

'The seat of a Member of Parliament becomes vacant, if he is absent, without leave of the Parliament, during the whole of three consecutive meetings of the Parliament unless Parliament decides to waive this rule upon satisfactory reasons being given.'


Going by the wording of the law, and given the determination with which the Parliament had already decided to remove Sir Michael with the aid of this provision, was Parliament truly applying the law as stated in black and white where it read 'unless Parliament decides to waive this rule upon satisfactory reasons being given?'


  1. It was argued that the Parliament had inherent powers to reverse its own earlier decision. Counsel relied on Constitution Schedule 1.10 which is not a substantive provision but an aid to interpretation of the Constitution. Schedule 1.10 provides as follows:

"Sch.1.10. Exercise and performance of powers and duties.

(1) Where a Constitutional Law confers a power or imposes a duty, the power may be exercised, or the duty shall be performed, as the case may be, from time to time as occasion requires.


(2) Where a Constitutional Law confers a power or imposes a duty on the holder of an office as such, the power may be exercised, or the duty shall be performed, as the case may be, by the holder (whether substantive or other) for the time being of the office.


(3) Where a Constitutional Law confers a power to make any instrument or decision (other than a decision of a court), the power includes power exercisable in the same manner and subject to the same conditions (if any) to alter the instrument or decision.


(4) Subject to Subsection (5), where a Constitutional Law confers a power to make an appointment, the power includes power to remove or suspend a person so appointed, and to appoint another person temporarily in the place of a person so removed or suspended or, where the appointee is for any reason unable or unavailable to perform his duties, to appoint another person temporarily in his place.


(5) The power provided for by Subsection (4) is exercisable only subject to any conditions to which the exercise of the original power or appointment was subject."


  1. I suppose it is common sense to argue that if the Parliament has the right and authority to grant leave of absence to a Member to be absent from a meeting by showing cause, by the same token it must have the same power to withdraw it. I have no difficulty with that proposition but I would add that to reverse such earlier decision, there must be justifiable reasons for doing so. It is not good enough to argue that the Parliament need not explain its reasons for undoing its earlier decision made in good faith and for good reasons.
  2. The reason for this is explained in section 104(2)(d) of the Constitution. By virtue of this provision Parliament must give opportunity to Sir Michael to respond to the Parliament's intention to penalize him for missing three meetings of the Parliament and the Parliament has to advise Sir Michael in response as to whether his explanation is accepted or rejected.
  3. Once that process has been completed, if the Parliament is determined on removing the Member, that question must be referred to the National Court which has the exclusive jurisdiction to determine this question. The removal of a Member once he is found guilty of missing three consecutive sessions of the Parliament under section 104(2)(d) is not automatic. Therefore even rescission by the Parliament of its earlier resolution granting leave to Sir Michael does not remove Sir Michael from being a Member of Parliament automatically. This point was stressed in SCR 3 of 2011[14].
  4. The difficulty with entertaining this argument from counsel now is that the question is already res judicata. But in the context of the question raised in the second reference, the plain fact of the matter as far as this issue goes is that the question is a legal one and it would not have made an iota of difference if the Court was made aware of the Parliament's rescission of its earlier decision or not. It was a question involving interpretation and application of a constitutional law and the court had expressed its opinion that neither the Speaker nor the Parliament has power to dismiss a member of Parliament; only the National Court in whom this power is vested by the Constitution.
  5. There is a logical reasoning to this because only in a court of law and justice a Member like any other citizen for that matter can be heard in his defence before a decision is made by an impartial arbiter. And the second part of s.104 (2) (d) is purposely there to provide the remedy where Parliament acts arbitrarily as it just did in this case. While the law is clear, its application is not always right and this is where parties have the right to come to court and be heard and this includes a Member of Parliament.
  6. In this case, Sir Michael was not only not given an opportunity to be heard before the Parliament used this law against him, the reasons for his absence overseas is abundantly clear and needs no further elucidation of the circumstances. There must be justification for this decision and that is the constitutional requirement.
  7. The only reason for Parliament's rescission of its earlier decision is that Sir Michael was far more seriously ill than conveyed to Parliament on 17 May 2011 and that he misled the Parliament on his true state of health[15]. But from any logical point of reasoning, that was no reason for the Parliament to rescind its earlier decision. It is mischievous when Parliament is used as a place of vindictiveness and non - qualitative debate. The fact of serious illness of Sir Michael was known at the time of hearing of SCR 3 of 2011 and the argument raised by the interveners, now referrers, used was that he was mentally retarded.
  8. On the other hand, Sir Michael has rights under section 50[16] of the Constitution to remain a Member and the People of East Sepik have a right to be represented by a Member in the Parliament. Must a court of law and justice entertain such a vindictive act that has no respect for the rule of law? For Mr Donigi to pursue this line of argument, this is clearly challenging the ruling of the Court in SCR 3 of 2011 and re-agitating the same issue which has been determined and the matter is already res judicata.
  9. Therefore on the question of whether Parliament had power under schedule 1.10 of the Constitution to reverse an earlier decision, there is a 'yes' and 'no' answer, depending on the circumstances. In this case, from what was expressed in Parliament according to the Hansards, Parliament's reasons for reversal of its earlier resolution was not made in good faith, it was actuated by ill-will disguised in the form of no clear advice in the first place. The fact remains that he was a very sick man whatever the nature of that illness maybe. Consequently the rescission is unconstitutional, let alone being a hollow vessel with no substance as section 104(2)(d) afforded no automatic power of removal to Parliament or the Speaker, of a Member of Parliament.

RETROSPECTIVITY


Does section 110(2) of the Constitution permit the making by Parliament of legislation with retrospective effect?


  1. The Parliament on 12th December, 2011 coinciding with the Supreme Court delivering its decision on SCR 3 of 2011, enacted or amended the Prime Minister and National Executive Council (Amendment) Act 2011 with retrospective effect to 1st January, 2011.
  2. Section 110(2) gives that power but in my view that power must be exercised only in terms of necessity. In this case whether passing of this legislation and the second amendment which I come to next have the blessings of the Constitution, particularly bearing in mind that Parliament's power to make laws is not unlimited. In my view, in this case, Parliament was erroneously led to believe that it had such power when it did not.
  3. The law was expressed to be a law made for the purpose of giving effect to the public interest in public order and public welfare. The purpose of the law under s2 was to impose time limit on and the duration of appointment of an Acting Prime Minister pursuant to section 143(1) of the Constitution when the Prime Minister is absent from the country. It was a law made to regulate or restrict rights of citizens in respect of freedom from arbitrary search and entry (s.44), right to privacy (s.49), right to freedom of information (s.51) and right to freedom of movement (s.52).
  4. Section 143 of the Constitution is expressed as follows:

"143. Acting Prime Minister.


(1) Subject to Subsection (2) an Act of the Parliament shall make provision for and in respect of the appointment of a Minister to be Acting Prime Minister when—


(a) there is a vacancy in the office of Prime Minister; or

(b) the Prime Minister is suspended from office; or

(c) the Prime Minister is—


(i) absent from the country; or

(ii) out of speedy and effective communication; or

(iii) otherwise unable or not readily available to perform the duties of his office.


(2) Where a Prime Minister is dismissed under Section 142(5)(a) (the Prime Minister) the person nominated under Section 145(2)(a) (motions of no confidence)—


(a) becomes the Acting Prime Minister until he is appointed a Prime Minister in accordance with Section 142(2) (the Prime Minister); and


(b) may exercise and perform all the powers, functions, duties and responsibilities of a Prime Minister.


(3) The question whether the occasion for the appointment of an Acting Prime Minister or for the exercise or performance of a power, function, duty or responsibility by an Acting Prime Minister, under this section has arisen or has ceased, is non-justiciable."


  1. This section empowers Parliament to pass an Act for the appointment of a Minister to be an acting Prime Minister when the Prime Minister is unavailable for any of the reasons set out from 1(a) to (c)(iii) to exercise and perform the powers, functions, duties and responsibilities of the Prime Minister during his absence. Neither the primary Act nor the Constitution spell out any time limit on such absence. The issue that arises here is whether an Act of Parliament can impose such a time limit?

Whether an Act of Parliament can impose a time limit on the appointment of an Acting Prime Minister?


  1. The primary purpose for the Constitution empowering the Parliament to pass an Act of Parliament is clear. That Act was passed in 2002 for that specific purpose and sections 3 to 6 already make provisions for this purpose. In my view to impose a time limit on the term of the acting appointment with a view to removal of a Prime Minister from office who overstays his absence from office is regulating and interfering with a constitutional right under section 50. Any legislation that has the effect of interfering with such special right of citizens must be struck down by the Constitution. Only a constitutional amendment can affect this right. In my opinion, section 143 of the Constitution does not allow Parliament to impose a time limit on the appointment of an acting Prime Minister.
  2. It follows therefore that Sam Abal did not cease to be Acting Prime Minister on the expiry of three months from the date of his appointment as Acting Prime Minister. And as such Sir Michael Somare was at no stage disqualified from holding office as Prime Minister while he was absent overseas on medical grounds by virtue of this Amendment of 12th December, 2011 to the Prime Minister and National Executive Council Act 2002.
  3. The second part of that amendment under s3 says that if the Prime Minister does not resume office within three months of the appointment of the Acting Prime Minister, the appointment shall cease and the office of the Prime Minister shall be deemed vacant. The Speaker of Parliament informs the Parliament of the vacancy in the office of the Prime Minister and a new Prime Minister shall be appointed under section 142 of the Constitution.
  4. The third part of the amendment relaxes the need for physical examination of a Prime Minister by two medical practitioners referred to in section 142(5)(c) of the Constitution which can eventuate with only examination of medical reports and clinical records from both local and overseas medical practitioners.
  5. And the fourth area of significance of this amendment is section 6 headed VALIDATION OF ELECTION OF PRIME MINISTER. The section is couched in these terms:

"For the avoidance of doubt and by virtue of powers conferred by section 2, 3 and 4 of this Act, it is hereby declared that:


(a) The declaration by the Speaker of Parliament on 2 August, 2011 that there was a vacancy in the office of Prime Minister, is not unlawful but is valid and effective and shall be treated by virtue of section 3 and 4 of this Act as having been lawfully and validly declared; and

(b) The decision of the Parliament on 2 August, 2011 that there was a vacancy in the office of Prime Minister is valid and effective, and shall be treated by virtue of sections 3 and 4 of this Act as having been validly decided from the time it was decided; and

(c) The election by Parliament of a new Prime Minister Peter O'Neill on 2 August, 2011 is valid and effective and shall be treated by virtue of sections 3 and 4 of this Act as having been validly elected from the time the new Prime Minister Peter O'Neill was elected."
  1. And the law was passed and certified on the same day 12th December, 2011. For purpose of this proceeding, I shall refer to this Act as Legislation One.
  2. On the same day after passing the Act Parliament elected Peter O'Neill as Prime Minister to take effect retrospectively from 2nd August, 2011.
  3. On 14th December, 2011 Acting Governor General, Jeffery Nape appointed Peter O'Neill and Belden Namah as Prime Minister and Deputy Prime Minister respectively to take effect from 2nd August, 2011[17].
  4. It is common knowledge that on this same day when this law was passed, the Supreme Court handed down its decision which nullified everything that the Parliament did on 2nd August, 2011.
  5. This matter should not be re-litigated because it is already res judicata. SCR 3 of 2011 had settled this issue and there is nothing left to argue again and again.
  6. What the Parliament has done by legislation is that it installed Peter O'Neill as Prime Minister of Papua New Guinea when the Supreme Court in SCR 3 of 2011 said he cannot be, because his election was unconstitutional.
  7. Parliament is not exempted from complying with the decision of the Supreme Court. By enacting this Act to keep O'Neill Government in power, Parliament did the unthinkable which has the same effect of disobeying Court Order under a false and erroneous perception that the Parliament was supreme and it was protected by the doctrine of separation of powers; that the Judiciary had no right to order it to do otherwise than what it did or planned on doing, come what may.
  8. I have discussed elsewhere in the judgment on the obligation of every person and every institution of the State to obey a Court Order including the Parliament. That is what the Constitution as the Supreme Law wants of all its creations and Parliament is no exception. There is no question about the Parliament being the Supreme Law making body but even all laws passed by the Parliament are subject to be reviewed by the Supreme Court.
  9. On 21st December, 2011 Parliament passed Prime Minister and National Executive Council (Amendment No. 2) Act 2011 and certified on 28th December 2011 with retrospective effect on 1st August, 2011. And I refer to this Act as Legislation Two.
  10. This law is also expressed to be a law that is made for the purpose of giving effect to the public interest in the public order and public welfare and pursuant to s2 of the Act, it is to provide for a maximum age for a member of Parliament to hold office of the Prime Minister pursuant to section 142 of the Constitution. The Rights sought to be restricted or regulated are those same rights affected by Legislation One.
  11. There are very few sections worthy of discussion. A new section 6A is inserted which provides:

"6A. AGE LIMIT OF PRIME MINISTER


A member of Parliament is not qualified to be or to remain, Prime Minister if he has attained the age of 72 years."


  1. The second and only other significant aspect of Legislation Two is a general declaration of validity of actions and decisions of the new government which is expressed in these words:

"6B. VALIDATION OF ACTIONS AND DECISIONS OF THE NEW GOVERNMENT


For the avoidance of doubt and by virtue of the powers conferred by section 2, 3 and 4 of the Prime Minister and National Executive Council (Amendment) Act 2011, actions taken and decisions made following the election of the Prime Minister referred to in section 6(c) of the Prime Minister and National Executive Council (Amendment ) act 2011 by-


(a) The Prime Minister;

(b) The National Executive Council of which the Prime Minister is the chairman appointed by the Head of State acting on advice of the Prime Minister; or

(c) Individual Ministers who are members of the National Executive Council; or

(d) Government agencies and officers of the Public Service acting on the authority of the persons or body referred to in Paragraphs (a), (b) and (c) shall be treated by virtue of section 3 of the Prime Minister and National Executive Council (Amendment) Act 2011 as having been validly taken or made from the time they were taken or made."
  1. Sir Michael Somare is well over 72 years old and the purpose for this law is crystal clear. The O'Neill/Namah regime in power is determined to see Sir Michael Somare completely exonerated from the floor of Parliament as long as it is in government however feasible regardless of the unconstitutionality of their acts or omissions.

The Law


  1. Parliament's authority to pass retrospective legislations can be found in s110(2) Constitution:

"110. Certification as to making of laws


(1) Subject to Section 137(3) (Acts of Indemnity) and to any Act of the Parliament made for the purposes of Subsection (3), the Speaker shall certify under the National Seal, in accordance with the Standing Orders of the Parliament, that a law has been made by the Parliament and, subject to Subsection (2), the law comes into operation on the date of the certificate.


(2) Nothing in Subsection (1) prevents a law—


(a) being expressed to come, or to be deemed to have come, into force on a date specified by, or fixed in accordance with, law; or

(b) being retrospective or retroactive."


  1. But the Constitution does not specify under what circumstances Parliament can pass retrospective legislations to cover past deeds and events. This is particularly so when most jurisdictions around the world are prohibiting retrospective laws in both civil and criminal law.
  2. The word 'retroactive' also termed 'retrospective' which is the opposite of 'prospective' refers in particular to statute or a ruling meaning extending in scope or effect to matters that have occurred in the past according to Blacks Law Dictionary Sixth Edition. And retroactive law is defined as a legislative act that looks backward or contemplates the past, affecting acts or facts that existed before the Act came into effect. It further states that a retroactive law is not unconstitutional unless it (i) is in the nature of an ex post facto law or a bill of attainder, (ii) impairs the obligation of contracts, (iii) divests vested rights, or (iv) is constitutionally forbidden.
  3. The Supreme Court in Polem Enterprises Ltd v. Attorney General & Ors [2008] SC 911 said that the power must be exercised sparingly in these words:

"Individuals and corporations conduct their affairs, business and daily lives according to the law as it exists from time to time. That is the essence of the Rule of Law. It is why there is a presumption against retrospectivity in the application of all sorts of laws. Applying laws retrospectively is akin to changing the rules of a game of football after the game has finished and then applying the new rules to see who won. That is why it is done sparingly, only in exceptional cases."


  1. Polem Enterprises sued East Sepik Provincial Government for cancellation of its liquor license for some six million kina. Relying on the legal position established in Peter Aigilo v The State (No.1) [2001] N2103 and Simon Mali v The State [2002] SC690 that empowered Solicitor General to settle claims against the State out of court, SG entered into a settlement agreement with Polem for a lesser amount. A year later another Supreme Court in The State v Manorburn Earthmoving Ltd [2003] SC 716 over-ruled the above two decisions and stated the law to be otherwise. SG must seek approval from AG for any out of court settlements. A demand was made for Polem to refund payments made as part payment in satisfaction of the settlement agreement executed on 15th August 2002, before Manorburn was decided. Polem filed proceedings to enforce the agreement and the National Court refused the application saying the law was as stated in Manorburn and ordered Polem to repay monies already paid to it by the State. Polem appealed. The Supreme Court held that the settlement agreement was entered into under a law in force and was therefore a valid agreement. The legal scene has now changed since Manorburn, but this decision has no retrospective effect and therefore does not affect the agreement.
  2. The ultimate effect of this law is that after three months of acting in Prime Minister's position, that acting stint of Sam Abal expired by operation of law. As Sir Michael was still in Singapore on medical grounds and unavailable to perform in the Office of Prime Minister, he was absent from office beyond the time given by law and must be deemed to have vacated the office. And because of the retrospective effect of that law backdated to January, 2011 on the same day that Legislation One became law, the Parliament elected Peter O'Neill as Prime Minister. There was no opposition, it was simply a ritual that the Parliament showcased because it was really quite unnecessary when under section 6A of the Act, the Parliament over-ruled or reversed the decision of the Supreme Court in SCR 3 of 2011 by validating the actions of the Parliament on 2nd August, 2011.
  3. The second purpose of this law is to validate the action of the Parliament on 2nd August 2011 that the Supreme Court in SCR 3 of 2011 had already ruled unconstitutional.
  4. The Constitution does not expressly prohibit, like in some jurisdictions both inside and outside the Commonwealth, laws passed by Parliament to take effect retrospectively. Under section 110(2) of the Constitution it states that 'nothing in subsection (1) prevented a law being retrospective or retroactive. Our constitution purposely left this option open where there might be a need for such a law despite clear statement being expressed in section 37(2) that ..nobody maybe convicted of an offence that is not defined by, and the penalty for which is not prescribed by a written law. The implication here is that an act that was lawful when done at the time of doing it cannot subsequently be made unlawful by an Act of Parliament. Therefore the emphasis on criminal law is that a person can only be charged and tried for an offence that is clearly defined by a written law for which appropriate punishment is also prescribed by written law as at the time of its happening.
  5. What are both these amendments trying to achieve? Parliament as supreme law making body has power to make laws for good order, public interests and well being of the People. Under s109 of the Constitution under the heading general power of law-making Parliament may make laws, having effect within and outside the country, for peace, order and good government of Papua New Guinea and the welfare of the People. It can't just pass any law it likes because every law passed must not be inconsistent with the constitutional laws and such laws or Acts passed must provide for all matters that are necessary or convenient to be prescribed for carrying out and giving effect to the Constitution. Laws that don't stand on all fours with the Constitution are struck down by the Courts. That is the essence of the Constitution being the supreme law that is above all laws.
  6. There must be good reasons for these laws. What reasons (if any) has been given by Parliament for passing a law to have effect retrospectively? Is it in the public interest in the public good and public welfare that Sir Michael Somare be removed as Prime Minister and also as Member of Parliament? People of East Sepik who voted in Sir Michael repeatedly in every election since Independence without fail will not agree with this at all. Is it in the public interest for the public good and public welfare that Peter O'Neill and his team remain in government? People who experienced police brutality at the hands of mobile squad brought in from Mt Hagen to maintain and support the O'Neill/Namah government remaining in power will not agree with this.
  7. The only question is whether such a law is valid for all intents and purposes? In my view this law is not a valid law for two reasons, it is not a good law and it is unconstitutional. The reasons why it is not a good law are:
    1. It is intended to promote and protect self-preservation and in the same stride foster injustice and defeats the rule of law.
    2. It is targeted at a particular individual such as to eliminate his standing as an elected member of Parliament as representative of an electorate and denying him his rights under s.50 of the Constitution.
  8. Both these laws are not reasonably justifiable in a democratic society, having a proper regard for the rights and dignity of mankind because both these laws fail to explain:
  9. Where s6 of the Act aims to validate the action of the Parliament on 2nd August 2011 by legislative enactment, such action is destined to fail because:
  10. The purpose of Legislation 2 was to restrict the age limit of a Prime Minister so that Sir Michael would be disqualified from holding office as Prime Minister. Is such a law valid? This law is both bad and unconstitutional.
  11. It is a bad law because it is aimed at an individual and not intended for public good and good governance. The law is targeted at doing harm and injustice to another sitting member for no valid reasons.
  12. The Law is also unconstitutional in that the Act, by limiting the age of eligibility for Prime Minister to 72, clearly disqualifies Sir Michael who is already well over that age, and thereby denying him his right under s50 to hold an elective public office. Such limitation can only be imposed by a Constitutional amendment.
  13. If the Parliament's rescission of its 17 May 2011 decision is invalid by reason of the fact that the question of removal of Sir Michael under s104(2)(d) for missing three consecutive meetings of Parliament is an issue that is res judicata and that the passages of the two legislations are legally unsustainable due to their being unconstitutional in their intent and application, the legality and constitutionality of the appointment of Peter O'Neill is also unsustainable as the issue has already been determined in SCR 3 of 2011 and therefore res judicata.
  14. The end result is that the Parliament's actions following the unilateral over-throw of the Somare regime by O'Neill/Namah led government despite having the numerical strength to remain in power, failed to validate its ascension to power in accordance with the Constitution and as such continued to remain in power contrary to the clear dictates of the Constitution, thereby becoming a de facto regime while Sir Michael Somare is the legitimate Prime Minister.

The Meaning and Effect of Section 19 Orders


  1. These two references originate from the aftermath of SCR 3 of 2011[18]. While it is arguable that the Parliament made one critical decision that is subject of this hearing before the Supreme Court handed down its decision, that decision was part and parcel of the entire scheme of events that unfolded within that period the Supreme Court delivered its decision in SCR 3 of 2011.
  2. And the purpose and aim of all those events and legislations passed were meant for consolidating the de fact government of Hon Peter O'Neill and the removal of Grand Chief Sir Michael Somare, not only as Prime Minister but also an elected Member of Parliament for the East Sepik Regional Seat, when the Supreme Court had already spoken on 12th December, 2011.
  3. Thus according the respect rightly deserved by that earlier judgment of this court in conformity with the principle of stare decisis et non quieta movere (to stand by decision and not disturb settled matters) I see the only logical way forward is to concentrate on the powers of this court under s19(2) of the Constitution. What are the limits of the powers of this court under section 19(2)?
  4. After all, a decision or judgment of a five-judge bench presided and chaired by the Chief Justice of significant constitutional questions with serious political consequences and implications delivered on 12th December, 2011, contrary to well established common law rules, remains rejected and ignored when disobedience of court orders are often met with severe consequences and penalties at the behest of the court.
  5. It was strongly contended by counsel representing the referrers and those supporting interveners that the Supreme Court had exceeded its jurisdiction by going beyond the powers given to it under s19 (2) Constitution by ordering the Parliament or making consequential orders when all it can do is give advisory opinion only and leave it to the affected party or parties to take its opinion as they see fit. I will try to demonstrate why I disagree with this argument in the light of the wording in s19 (1) and (2) read together and by way of cross-check the serious constitutional implications of ignoring Sir Michael Somare's rights as a duly elected Member of East Sepik Regional Seat.
  6. Before embarking on the discussions, I set out section 19 below:

"19. Special references to the Supreme Court.


(1) Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.


(2) An opinion given under Subsection (1) has the same binding effect as any other decision of the Supreme Court.


(3) The following authorities only are entitled to make application under Subsection (1):—


(a) the Parliament; and

(b) the Head of State, acting with, and in accordance with, the advice of the National Executive Council; and

(c) the Law Officers of Papua New Guinea; and

(d) the Law Reform Commission; and

(e) the Ombudsman Commission; and

(ea) a Provincial Assembly or a Local-level Government; and

(eb) a provincial executive; and

(ec) a body established by a Constitutional Law or an Act of the Parliament specifically for the settlement of disputes between the National Government and Provincial Governments or Local-level Governments, or between Provincial Governments, or between Provincial Governments and Local-level Governments, or Local-level Governments; and

(f) the Speaker, in accordance with Section 137(3) (Acts of Indemnity).


(4) Subject to any Act of the Parliament, the Rules of Court of the Supreme Court may make provision in respect of matters relating to the jurisdiction of the Supreme Court under this section, and in particular as to—


(a) the form and contents of questions to be decided by the Court; and

(b) the provision of counsel adequate to enable full argument before the Court of any question; and

(c) cases and circumstances in which the Court may decline to give an opinion.


(5) In this section, "proposed law" means a law that has been formally placed before the relevant law-making body." (Bold and underlining is mine)


  1. What does this phrase "an opinion given under Subsection (1) has the same binding effect as any other decision of the Supreme Court" mean, supposing the referrers are correct that it only gives power to the Supreme Court to give an advisory opinion? I have read, apart from having heard counsel's submission, which to me are still quite shallow because the thrust of their submissions fails entirely to link itself with the wording of s19 (2) of the Constitution. Neither Ms Twivey nor Mr Donigi could point to any specific provision in the Constitution that categorically stated that an opinion given by the Supreme Court in a section 19(1) reference is advisory only. Even subsection (2) makes no mention of the word 'advisory'.
  2. It seems that a perception had grown over time that s19(1) reference had a very limited scope. And that scope was to give advisory opinion only. And it seems that this view is seemingly perpetuated by the statement of the law expressed in the head note to the decision of the Supreme Court following a reference filed under section 19 of the Constitution in Re Petition of Sir Michael Thomas Somare [1981] PNGLR 265 which reads as follows:

"(Per Kidu, CJ, Kapi and Miles, JJ): "The essential purpose of s.19 of the Constitution is to vest in the Supreme Court a limited jurisdiction to give advisory opinions; it is not meant to cover the field in relation to the application for rulings on the constitutionality of Acts of the Parliament, by way of public interest suits."


  1. Lawyers representing the referrers contended that s.19 (2) gave only advisory opinion and it could not do anything more. But s19(2) does a lot more according to its wording compared with the recommendations from the CPC. While defying the orders of the Supreme Court of 12 December 2011 that ordered reinstatement of Sir Michael Somare as the legitimate Prime Minister, it was contended that the doctrine of separation of powers was violated by the Supreme Court in ordering the Parliament. This was just a figment of imagination of the Parliament and the 74 members supporting the O'Neil-Namah camp because this issue never arose in the trial. Just like doctrine of necessity, it was not raised at the reference hearing in both SCR 3 of 2011 and these two references.
  2. Counsel blamed the Supreme Court in SCR 3 of 2011 of having grossly erred in issuing directive orders consequent upon its findings. Paragraphs 63, 64 & 65 of Mr Donigi's written extract state:

"(63) In my other public "opinions" on the matter, I have expressed the view that an opinion of the court would elicit one of three responses by the government institution concerned. In this case Parliament has three choices. It can accept the interpretation of the Supreme Court and follow the ruling of the court. It can in its wisdom decide that the Supreme Court ruling has created and identified a loop-hole that needs to be fixed by an amendment to an existing law or the making of a new law to cover the instance identified by the Supreme Court. Lastly, it can do nothing. The last option is like the first option except that in the first option the executive is taking action to implement the ruling of the court. In the last option, no one takes action in which case the ruling becomes law to guide future actions.


(64) All three options would comply, in our submission, with Section 19(2) of the Constitution which says that it has the same binding effect as any decision of the Supreme Court. Is there therefore a need for orders in the nature of those issued by the Court in SCR 3 of 2011? In our submission there is no need because of the principle of separation of powers contained in Section 99 of the Constitution. A directive order by the court would result in the removal of the discretion permitted by the opinion and result in direct interference with the other arm of government.


(65) An opinion given by the Court pursuant to its powers under Section 19 of the Constitution becomes a guide to future actions to be undertaken by the government institution concerned. That opinion is not conclusive. It is a judgment or belief resting on grounds, insufficient to produce certainty but nevertheless is one can be acted upon, by the institution exercising its discretion to take taking one of the three options outlined above."


  1. No authorities have been cited for the above propositions. And in paragraph 66 of the his text Mr. Donigi again quotes from the Chief Justice's judgment in OLIPPAC's case where the Chief Justice discussed the interpretation and application of constitutional provisions which I again quote counsel:

"(66) In OLIPPAC case5, in paragraphs 104-108, the Supreme Court said the following in respect to interpretation and application of constitutional provisions:


104. The Constitution mandates this Court to construe the Constitution in a fair and liberal manner, to think expansively and to be dynamic and where necessary, to use judicial ingenuity. The body of law developed in this way would then form a part of the home grown jurisprudence.


105. We appreciate that the Constitution, through law, is a document derived from a political process and that many of its components contain political statements.


106. John Goldring in his book The Constitution of Papua New Guinea makes this pertinent observation at page 29:


"Thus political, rather than legal, considerations led to the desire for a home-grown constitution. The document is to some extent unusual as a constitution in that it contains a full statement of "National Goals and Directive Principles": a general statement of policy, which under s.25 of the Constitution is to provide a guide not only to the implementation of policy, but also to the interpretation of the Constitution and other laws. The political statements were statements which were, and which should be seen as, proceedings from the people themselves. In itself, it is not unusual for a constitution to contain a statement of political aims (Duhacek 1973). What is unusual about the Papua New Guinea Constitution is the degree of detail with which the political aims are set out and also the fact that to some extent, at least, those political aims are set out and also the fact that to some extent, at least, those political aims are made enforceable. Thus the need for a constitution which drew its authority from the will of the people of the country, rather than from the legal machinery of the former metropolitan power."


107. It is therefore difficult for Judges to be totally divorced from considering socio-political considerations which permeate the Constitution. The CPC considered this difficulty but counselled against judges withdrawing from taking into account political considerations in appropriate cases. The CPC stated in Chapter 8, paragraphs 5-6, as follows:


5. The Courts do not, however exist in a vacuum. Like other institutions of government of a country, they are caught up in political reality, and often their decisions have political consequences.


6. In carrying out their Judicial role, judges ... must take full account of society in which they live; they must be attuned to the wishes of the society and to that extent must be politically conscious (although not party politically conscious.


108. In the past, this Court has been conscious of the potential risk of politicization of the Court in deciding politically charged cases and taken great care in staying within the limits of law and reason. That has always been the approach of this Court and this will continue that path."


  1. And because of what he has set out in his submissions above, Mr. Donigi says that on 12th December 2011 this Court strayed from that path."
  2. This is the punch line of Counsel's submission because it goes to tell much as to why we are here. While criticising the Supreme Court, Mr. Donigi has not shown convincingly how the Court had strayed. He failed to explain the various options discussed by the Constitutional Planning Committee under the topic of Advisory Opinions in the context of the law as it stands. Nor does he explain why the final sentence in s19(2) is couched in the terms as it is presently worded and not in the language of their submission, ie advisory opinion only.
  3. If counsel supporting the referrers had carefully studied or at least read paragraphs 150 – 153 of CPC Report thoroughly, it would have been obvious to them that the CPC was contemplating several case scenarios that would emerge for the opinion of the Court under this special procedure in s19.
  4. Under paras150 and 151 of CPC Report, the Committee discusses the various options that it was able to record from its extensive study of different Constitutions in the countries of different Continents that the Committee visited and noted the likes and dislikes about each of those options. This included advisory opinions from hypothetical cases only and advisory opinions arising from real disputes between the parties. The Committee also noted the disadvantages of the hypothetical character of providing advisory opinions thereby depriving a litigant with a good case of compensable litigation in a contentious matter because of an advisory opinion already given by the Court.
  5. Then in paras 152 and 153 of the Report the Committee concluded on the experiences of the countries that permitted judicial advisory opinion that in Papua New Guinea if this special procedure was to be adopted, advisory opinions sought must have two aims: first, is to establish what the law is on a particular constitutional point; and the second aim is the advisory opinion must help to resolve the dispute about what the constitutional law is on that particular issue before the dispute becomes aggravated and the parties to the dispute take strong and inflexible positions.
  6. This is why the Committee recommended in para 151 in these words "we recommend that provision be made for the Supreme Court to give an advisory opinion on any matter concerning any provision of the Constitution, including its implementation and enforcement."
  7. What the Constituent Assembly drafted into the final text of the Constitution in s19(2) is the culmination of that recommendation in short and precise drafting language avoiding repetition so that whatever the opinion the court gives, it has the same binding effect on all persons like every other decisions of the Supreme Court. If one does understand what CPC recommended, the wordings in s19(2) are very clear in their message.
  8. From the above reasoning I am unable to comprehend counsels' argument on s19 (2). References were made to consequential orders following Court decision of 12th December, 2011 as being contrary to s19(2). I am not convinced by this argument based on my own interpretation.
  9. CPC is not advocating for a toothless tiger or a law without enforcement or remedial power. Drawing from its wide and extensive consultations across the globe and from the experiences of the countries and regions it visited, CPC is providing options for the Constituent Assembly to choose in its final act of drafting our Constitution.
  10. CPC in paragraph 151 took a serious view of placing the court in embarrassing position when a party aggrieved by certain actions of the executive cannot seek redress through the courts because the court had already given an advisory opinion on the matter thereby rendering a potential legal suit the subject of res judicata; and therefore an aggrieved party is left without compensation.
  11. And thus in paragraph 152 the CPC recommended that even when the Supreme Court is asked to give an advisory opinion on a matter, it must also provide for the implementation and enforcement of that opinion. And paragraph 153 seals it off by stating that the advisory opinion not only must settle the law or establish what the law is on a particular constitutional point in contention, the decision of the court must also help to resolve the dispute on what the constitutional law is on a particular issue before the dispute becomes aggravated..
  12. And what does this final text in the Constitution we have today state? There is no repetition of the word 'advisory.' The Constitution only states 'opinion' without any adjectives that would limit the power of the Supreme Court when exercising its advisory functions of interpreting the Constitution as the highest Constitutional Court of the land.
  13. It was not an over-sight or an inadvertent omission that the word 'advisory' slipped out of the final text of the Constitution. It was a deliberate decision of the Founding Fathers, the Constituent Assembly that deliberated on the work of the Constitutional Planning Committee and adopted our Constitution in their deliberate wisdom to have the final text of our Constitution appear as it does now.
  14. And therefore the wording in subsection (2) of s19 as in our Constitution today which reads 'an opinion given under subsection (1) has the same binding effect as any other decisions of the Supreme Court' is not there by mistake or over-sight. It is a deliberate choice or inclusion in the enactment of the Constitution by the members of the Constituent Assembly who had the final say in how the Constitution evolved. This was their deliberate judgment based on advice given to them at the time supported by all the hard work from the Constitutional Planning Committee. The Constituent Assembly was not obliged to adopt everything that the CPC recommended.
  15. 'Has the same binding effect as any other decision of the Supreme Court' literally means what is says, that any judgment of the Supreme Court, opinion or otherwise has the same binding effect as any other decision of the Supreme Court.
  16. The phrase 'binding effect' can be literally read to mean that the decision of the court to whomsoever it applied and who felt bound by that decision or judgment, must obey it to the letter of the law. So whatever that judgment or decision found or directed, the person bound by that judgment or decision is obliged to obey it and comply with the terms of that judgment or decision.
  17. The wordings in subsection (2) of s19 are therefore not there by mistake. Parliament does not make mistake as the Lord Chancellor Lord Halsbury expressed in The Commissioners for Special Purposes of Income Tax v John Frederick Pemsel [1891] AC 531 as follows:

"I also think the true view of the construction of an Act which is to apply to England, Ireland and Scotland alike, is, that it ought to be construed according to the cannon of construction laid down by the Court of Session in the case of Baird's Trustees v Lord Advocate 15 Sess. Cas. 4th Series 682. It is a rule which has been acted on, not only in respect of Taxing Acts, but of other enactments. Indeed, it is only part of a general principle of common sense which Mr Justice Grose laid down in a rating case: R v Hogg 1 T R 728, 'a universal law cannot receive different constructions in different towns.' And if (to quote the language of Lord Justice Fry), words construed in their technical sense would produce inequality, and construed in their popular sense would produce equality, you are to choose the latter. I should hesitate very much to qualify this rule of construction by pointing to instances in which inappropriate words had been used in statute. That, in fact, the language of an Act of Parliament may be founded on some mistake, and that words may be clumsily used, I do not deny. But I do not think it is competent to any Court to proceed upon the assumption that the legislature has made a mistake. Whatever the real fact may be, I think a Court of Law is bound to proceed upon the assumption that the legislature is an ideal person that does not make mistakes. It must be assumed that it has intended what it has said, and I think any other view of the mode in which one must approach the interpretation of a statute, would give authority for an interpretation of the language of an Act of Parliament, which would be attended with the most serious consequences."


  1. There is a reason, and good reason for the Constituent Assembly to have adopted that phrase or those words as the appropriate wording for subsection (2). The members of the Constituent Assembly foresaw what would happen down the track after Independence and in their wisdom inserted the passage "an opinion given under sub-section (1) has the same binding effect as any other decision of the Supreme Court" in subsection (2) so that there is not an inkling of a doubt that an Order of the Court, being a product of the Court's direct and deliberate judgment, decision, ruling or opinion, has the same binding effect as any other decision of the Supreme Court. The Constitution cannot be clearer than it already is and the language is in plain English. Anyone who has any questions about a court order must go to the judgment to understand or appreciate why the order is worded in the way it appears on record. There are built-in avenues to which parties can resort if they have any disagreement with a court ruling as every decision made in court is subject to challenge by way of appeal or otherwise.
  2. Therefore applying the basic rule in the canon of construction that the Constitution be given free and liberal meaning in so far as s19(2) is concerned, the Order of the Court of 12th December, 2011 was a valid binding Order that was delivered to the parties to be obeyed and to date remains to be obeyed. That Order does not violate the Constitution, Organic Laws or any other Acts of Parliament nor is it of any threat to the structure of Government; that is the separation of powers and the independence of three arms of Government. Any such threat is only a figment of imagination and in the mind of its beholder.

DUTY TO OBEY COURT ORDERS


  1. The orders issued by the Court are no different from usual orders issued in the past on other s19 references. How different were those orders issued in the past that they were obeyed by those to whom the orders were directed including the National Parliament like in the Governor General case to the orders of 12th December, 2011 that they did not have to be obeyed?
  2. Counsel makes interesting propositions in paragraph 63 of his submission in which he proposes three possible responses from a government institution against or to whom the Supreme Court expresses an opinion under s19 of the Constitution. According to Mr. Donigi, that concerned institution has three choices. As choice number one, he can accept the opinion of the Court and comply with its ruling. It is discretionary. Secondly, it is the Parliament's choice, to take further steps to take corrective measures to remedy any loophole in the law as identified by the Court. Its third and last choice is that the government institution concerned does nothing in relation to the opinion of the Court. Can the Parliament and those affected by this Court Order really do that? That is, do nothing?
  3. Translating Mr. Donigi's proposition and the three choices that the National Parliament had on 12th December, 2011 in SCR 3 of 2011 where the Supreme Court ruled that:
  4. It would have meant that the National Parliament had a choice to implement those rulings if it chose to and in this case it decided against complying with Supreme Court's ruling. Secondly, accepting what the Supreme Court had ruled, Parliament had power and authority to pass new laws to address any shortfalls identified in the Supreme Court ruling which is what the Parliament did by passing two new items of legislation and taking additional steps to validate what were found to be invalid by the Supreme Court, and the third choice is that the Parliament simply ignore those three main findings of the Supreme Court and take note for future guidance.
  5. Counsel has not relied on any authority for his noble propositions and on my part I have difficulty in accepting these submissions. I am firmly of the view that the construction and application given to s19 (2) in SCR 3 of 2011 was correct in the issuance of the Court Orders for purposes of guidance for compliance with the opinion of the Court.
  6. It is a constitutional duty of all persons by virtue of s155(6) to obey court orders. Section 155(6) of the Constitution provides:

"(6) Subject to any right of appeal or power of review of a decision, it is the duty of all persons (including the Law Officers of Papua New Guinea and other public officers in their respective official capacities), and of all bodies and institutions, to comply with and, so far as is within their respective lawful powers, to put into effect all decisions of the National Judicial System.


  1. The Supreme Court comprising Kapi, CJ, Cannings, J and David, J made this observation in SCR No 34 Of 2005; Review Pursuant to Constitution, Section 155(2)(B); Application by Herman Joseph Leahy (2006) SC855:

"Section 155(6) says is that everyone has a duty to comply with and put into effect court decisions. In a constitutional democracy such as Papua New Guinea's, where the judicial authority of the People is vested in the National Judicial System, which (alongside the National Parliament and the National Executive) is one of the three principal arms of the National Government, it would seem to go without saying that everyone has that duty. (See Constitution, Sections 99(2), 158(1)). It is a duty enforced generally by the law of contempt (see, eg, Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448, Raine DCJ, Saldanha J, Kearney J, Wilson J, Greville-Smith J; Pius Mark v Korali Iki [1995] PNGLR 116, National Court, Akuram AJ; and see generally E L Kwa, Constitutional Law of PNG, Lawbook Co ©2001, par (7.8): Obedience to Court Decisions, pp, 126-127).


122. Sakora J correctly reflected on the constitutional authority of the Supreme Court and the National Court to demand compliance with and the giving effect to their decisions in Peter Luga v Richard Sikani Commissioner, Correctional Services and The State (2002) N2285:


The Constitution vests contempt powers on the two superior courts (the Supreme and National Courts of Justice) to punish offences against themselves under ss 160(2) and 163(2) respectively. Similar language is employed in these provisions to describe the power:


The [Supreme/National] Court is a superior court of record and accordingly subject to any Act of the Parliament, has the power to punish the offence against itself commonly known as contempt of court.


This is of course inherent power translated into statutory form under the Constitution ... . The courts, therefore, have undoubted powers to compel observance of their processes and obedience of and compliance with their orders and directions. These powers are inherent ... in the sense that they "are necessary attributes to render the judicial function effective in the administration of justice". Expressed in another way, the power to punish for contempt is inherent in the judiciary. The contempt power enables the courts to perform their functions without interference, to control courtroom behaviour and to enforce orders and compel obedience.


123. The duty is also reflected in the principle that the plain and unqualified obligation of every person in respect of whom a court order is made, to obey it unless and until it is discharged, even if they do not agree with or think it is invalid or irregular. As long as a court order exists it has to be obeyed (Philip Soon Kiat Yap v Tin Siew Tan, B & T Engineering Pty Ltd, Robert L Wong, William Baptiste and David F Tau [1987] PNGLR 227, National Court, Hinchliffe J).


124. The duty imposed by Section 155(6) is thus unremarkable. Without the express injunction of Section 155(6), the duty would exist by necessary implication.


125. The second thing that stands out about Section 155(6) is that it does not impose a special duty only on the Public Prosecutor or Law Officers. The duty is imposed on every human person (citizen or non-citizen) and every body or institution in the country. No one is immune. It is all encompassing."


  1. In Yap v. Tan (supra) single judge Supreme Court adopted this passage from English case of Hadkinson v Hadkinson [1952] 2 All ER 567 where Romer, LJ sitting in the Court of Appeal said at 569:

"'It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham LC, said in Chuck v Cremer [1846] EngR 924; (1846) 1 Coop T Cott 205; 47 ER 820: "A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it ... It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid — whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long a it existed it must not be disobeyed.' (emphasis is mine)


346. Other cases that relied on this authority include Niugini-Lloyds International Bank v Bernard Sakora [1987] PNGLR 275; re Yabo Sabo [1995] PNGLR 13; Kimbe Bakery v Jalatang [1993] N1274; Pius Mark v Korali Iki [1995] PNGLR 116; Concord Pacific Ltd v Thomas Nen[2000] PNGLR 47; Soso Tomu v Independent State of PNG [2002] N2190; Peter Luga v Richard Sikani, Commissioner for CS [2002] N2285 and Ome Ome Forests Ltd v Ray Cheong [2002] N2289.

  1. There is a constitutional requirement for complying with court orders and judgments of the courts cannot be any clearer than as expressed. The above passage is indeed appealing or pleading to the lawyers and warning them of the danger of becoming judges of their client's misfortune when it comes to obeying court orders if they advise them wrongly. The plea is 'it would be most dangerous to hold that suitors or their solicitors, could themselves judge whether an order was null or valid-whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such question.' The implications of what we are seeing are not good. The public are led to believe that lawyers are advising the Parliament and Executive Government one thing and the Supreme Court is saying quite the opposite. Whose role and responsibility is it to interpret and apply the Constitution? The Legislature, Executive or the Judiciary?
  2. We have a serious problem here that the other two arms of the Government under leadership of de facto Prime Minister Hon Peter O'Neill and the Legislature under the Speaker Hon Jeffery Nape refuse to abide by the opinion of the Supreme Court because they believe that they are above the Constitution and their legal opinions are better than that coming from the constitutionally mandated arm of the Government whose function is to exercise judicial authority and power of the people under s158 of the Constitution. In some jurisdictions where Parliament assumes this dual role it is criticised with the use of epithets like the high court of Parliament because Parliament wants to override the Judiciary and not only make laws but interpret and apply the laws too.
  3. The cornerstone of democracy and the rule of law are the uncompromising duty and obligation upon all persons, individuals or corporations, to obey and comply with court orders. No democracy can survive if court orders can be shunned and ridiculed and trampled on as happened in this case on the advice of lawyers. There are processes in place for those who disagree with court orders. But they cannot turn blind eye to the order nor do they have any discretion to not obey the order. There are criminal sanctions attached to anyone who disobeys a Court Order whether it is taken out in a civil or criminal action.
  4. If counsel accept the correctness of the opinion of the Court in SCR 3 of 2011 except for its orders because of the 9th December, 2011 resolution of the Parliament rescinding its earlier decision of May 2011 granting leave to Sir Michael Somare, why then not apply to the Court and seek a variation of it? No such application was made.
  5. Even then, the National Parliament, Mr O'Neill, Mr Nape, Mr Marat and Mr Namah were all parties directly concerned with SCR 3 of 2011 and who were fully represented in this Court in that reference before this Court. It would have been in their best interest to be in Court on that day and be part of the attendees with vested interest in the proceeding, concerned with every move in the way the case unfolded as the hearing progressed. But as evidence from the Hansard of 9th December, 2011 shows Parliament was purposely convened to counter whatever the decision of the Court was going to be and it passed the first resolution that day which rescinded its earlier decision of 17th May granting leave to Sir Michael for the reasons amply explained already.

SUPREMACY OF PARLIAMENT AND CONSTITUTIONAL DEMOCRACY


  1. It was argued repeatedly throughout this hearing that Parliament was supreme. On this premise the referrers claimed that the Supreme Court caused the biggest upset when it ordered the Parliament on 12th December, 2011 to reinstate Sir Michael Somare as the Prime Minister when the Parliament by majority of 70/24 votes removed him from office as Prime Minister and in his place elected Peter O'Neill. But how supreme is the Parliament if its source of power is the Constitution? Since Independence it has come to be accepted generally by everyone that the Constitution is supreme in Papua New Guinea.
  2. Based on their belief that the Parliament was supreme the referrers elevated the powers of the Parliament beyond those of the Judiciary and argued that the Supreme Court erred. Parliament is not supreme. Only the Constitution is supreme. In re Application of Michael Thomas Somare (supra), Chief Justice Kidu also makes this point while discussing a different issue of locus standi and says this at p.271:

"The common law principles or rules relating to locus standi do not relate directly to cases where questions of challenges to constitutionality of Acts of Parliament arise. No such questions arise as far as I have been able to find out. This is so because in that country where there is no written Constitution and Act of the Imperial Parliament cannot be said to be unconstitutional or constitutional. In that country the Queen-in-Parliament is supreme and can make any law it desires to make. In Papua New Guinea it is the Constitution which is supreme and the Parliament can only make laws which are not contrary to the Constitution."(Emphasis is mine)


  1. Chief Justice Kidu further stresses this point while categorically stating that even Parliament's law-making power is subject to the Constitution, in the same Somare case (supra) at p.273:

"The Constitution of this country provides that all power belongs to the people. See the Preamble to the Constitution. These powers are then given to three bodies — the National Parliament (legislative power), the Executive (the executive power) and the Judicial System (the judicial power). These powers are given with the clear understanding that they be used properly and constitutionally.


In the case of the legislative power, the Constitution specifically says:

"109. GENERAL POWER OF LAW-MAKING

(1) Subject to this Constitution, the Parliament may make laws, ... etc."


That is to say that when the Parliament makes a law, it shall be constitutional — s. 10 of the Constitution also says:

"All written laws (other than this Constitution) shall be read and construed subject to:

(a) in any case — this Constitution; and

(b) ...

(c) ..."


The People, depository of all powers in Papua New Guinea, have, through the Constitution, directed that the Parliament make laws which comply with the Constitution. If the legislative power is exercised contrary to the Constitution, why should not the People come to this Court and complain? After all it is their power and they are, in my view, entitled to complain to the Supreme Court, in whom their power to determine the constitutionality or otherwise of an Act of the Parliament, is vested. As a beneficiary in trust is entitled to invoke the powers of the courts to ensure that the trustees act in their interest so should the People whose legislative power the Parliament exercises, complain to this Court if they think the Legislature acts contrary to the Constitution through which their power has been given to it.


The Constitution also obliges every person in Papua New Guinea "to respect and to act in the spirit of, this Constitution, ..."See the Preamble to the Constitution.8. This includes Member of the Parliament. They are required, in this case, to ensure that laws they make are constitutional. They are also required, when taking office to swear that they will uphold the Constitution of Papua New Guinea Order 5 (3) of the Standing Orders of the National Parliament and s. 6 of the Constitution.9. This obligation must mean something. For people such as Members of the Parliament to make this declaration and ignore it afterwards makes a mockery of the Constitution." (Emphasis is mine)."


  1. If there is no direct case authority on this point and referrers counsel have failed to point to any, this is an authoritative statement made by our very own first Chief Justice after Independence. What the Court Order was directing was in accordance with the opinion of the Supreme Court according to the majority decision and the Order itself was signed by all five members of the Court. The Court Order did not just drop out of the sky or came out of the blue. It was the product of the judgment of the Supreme Court. Remove the Court Order by sinking it in the deepest part of the ocean or burn it in the fire or bury it deep in the ground where no one can find it, there still remains the decision of the Supreme Court that must be obeyed. That is what the law says, an order or judgment of a Court must be obeyed unless set aside. There is no such thing as walking away from a decision of the court and pretending as if it did not exist.
  2. There have been Orders like this issued in s19 references in the past that were obeyed without question. A similar order like this against the National Parliament in a section 19 reference in Re-Election of Governor –General Sir Paulias Matane for Second Term Reference by Morobe Provincial Executive [2010] SC 1085 (Sakora, Batari, Cannings, Manuhu and Gabi, JJ.) decided by a five-men bench and chaired by a very senior judge now a member of this bench faced no difficulty whatsoever in its compliance. In fact in that case the Court Order was very detailed and directed the Speaker to reconvene the Parliament within a specific time frame and properly adhere to the Constitutional guidelines to elect a Governor General as there was a vacancy following the expiry of Sir Paulias Matane's term. The Speaker had no hesitation complying with the Court Order to reconvene the Parliament as directed by the Supreme Court to nominate the next Governor General.
  3. The Parliament followed the directions given in the Court Order to the letter and that was the end of the matter. But why was this Order or decision or opinion of the Supreme Court in SCR 3 of 2011 so different to those issued in earlier cases that it was so difficult for the Parliament to obey? Should the Court have gone further and directed the Speaker to reconvene the Parliament to implement the Orders of the Court? That would have made not much difference if the attitude prevailing on this occasion was for a change of government, howsoever effected. The least that the Speaker should have done was recall the Parliament and whilst on the floor of Parliament, whichever way the tide swung with the numbers remained the Government.
  4. The difference in Re-Election of Governor-General Sir Paulias Matane case (supra) with SCR 3 of 2011 was that in the Governor General election case, it did not matter much to the Parliamentarians because the Order did not affect them, they were not the victims; the victim was Sir Paulias Matane so they were happy to go back and do it properly according to law this time as they were corrected and directed by the Supreme Court to do so. However in SCR 3 of 2011, the decision of the Supreme Court affected their own survival, power, prestige, authority, etc and they would clutch at a straw and anything to remain in power including invoking parliamentary privilege under s115 of the Constitution. This right was under no threat at all except in the mind of its beholder.
  5. Our system of government has been structured in such a way that the Constitution remains supreme from which all three arms of the Government derive their source of strength and power. All power belongs to the People and these three arms of government are merely custodians of the People's Power. Therefore the Parliament cannot project itself above the other two arms and proclaim itself as supreme. The Supreme Court will always chop it down because the Court always has the last word. All laws made by the Parliament are not immune from the scrutiny of the Supreme and National Courts. Supreme Court will cut down or throw out any law that is unconstitutional and repugnant to the principles of humanity. Parliament is the Supreme law making body whose laws are subject to the scrutiny of the Supreme Court. Therefore it is incorrect to say that Parliament has unlimited law making powers. Parliament's law making powers are limited to making only good laws, not bad laws or laws inconsistent with the Constitution because such laws will attract the Supreme Court's unlimited jurisdiction to review all laws and strike them down to the extent of their illegality or inconsistency with the Constitution.
  6. In the last thirty-six years of seeing our autochthonous Constitution at work, it is common sense for one with some knowledge of politics and government to conclude that constitutional democracy reigns in PNG. In Westminster constitutionalism where parliamentary sovereignty rules the order of business of government, Parliament could make and unmake laws without any substantive constraints. The system gives Parliament monopoly over power[19] and there is an old saying that goes back many centuries 'absolute power corrupts absolutely.'[20] The converse is the constitutional democracy where the Constitution is supreme, all legal and political acts of government inconsistent with the Constitution are invalid and open to Courts for review.
  7. It is important to note that when courts review legal or political acts by governments, they are vindicating constitutionalism and the rule of law. They are ensuring that power is exercised within the confines of the Constitution. If Parliament could contradict the judiciary by passing an ordinary Act of Parliament, procedural limitations requiring special majority like absolute or two thirds majority would become meaningless. And this is practice more consistent with the Westminster constitutional model where Parliament is supreme. While we adopted the Westminster model of government, we have not inherited the Westminster constitutionalism. Our Constitution is unique, home-grown or autochthonous.
  8. And all the evidence we have to date of our Constitution at work according to the letter of the law and its deeds are consistent with Constitution being supreme and it is the supreme law.
  9. In summary all that can be said about the argument on separation of powers and sovereignty or supremacy of Parliament that was forcefully advanced by the referrers is that they were mere smokescreens camouflaged in these two big cannons and forced upon the public to accept as they pulled the wool over their eyes to conceal what was very clear, precise, unambiguous and binding decision of the Supreme Court that was deliberately and defiantly left behind and lying under their heavy weight and struggling to breathe when it ought to have been obeyed but was neglected. There was nothing wrong with the orders as there was nothing wrong with the opinion of the Court.
  10. I find nothing in the Constitution that gives powers to the Parliament beyond or over and above those of the other two arms of government to exert their might and superiority over the judiciary. Such power can only come from the Constitution which is the Mother Law of all laws in the country. Just because Parliament is constituted by Members directly elected by the People and is the supreme law making body does not empower it with greater power than the other two arms. That is only wishful thinking and a misconception of a bygone era, that Constitutional supremacy has superseded on Independence. No longer are we tied down with that colonial legacy.
  11. When the Parliament divested itself of any controlling power over the Courts, neither by choice or inadvertence, did it create such a provision in the Constitution as did the Parliament in some of the more recently established constitutional democracies like the South West African country called Namibia. The Constituent Assembly that drafted their Constitution specifically gave power to the Parliament to over-rule any decision of the Supreme Court by a law that was lawfully passed in Parliament for that purpose, if the Parliament disagreed with a Court decision. Just for argument sake note what Article 81 of Namibian Constitution provides:
Article 81 - Binding Nature of Decisions of the Supreme Court
A decision of the Supreme Court shall be binding on all other Courts of Namibia and all persons in Namibia unless it is reversed by the Supreme Court itself, or is contradicted by an Act of Parliament lawfully enacted.[21]

  1. The closest that Constitution maybe deemed to give this over-sight or overriding powers is s157 of the Constitution which talks about the independence of the National Judicial System. It provides:

"157. Independence of the National Judicial System.


Except to the extent that this Constitution specifically provides otherwise, neither the Minister responsible for the National Justice Administration nor any other person or authority (other than the Parliament through legislation) outside the National Judicial System has any power to give directions to any court, or to a member of any court, within that System in respect of the exercise of judicial powers or functions."


  1. Even this section does not, either expressly or impliedly, give the Parliament power to pass laws that either contradict the decisions of the Court or laws that adversely affect judges exercise of their judicial functions and duties.
  2. On its 20th anniversary, the Namibian Constitution was brought under the microscope and whilst there was no suggestion that the Parliament did resort to that power at some point in time since their Independence in March 1990, a paper presented in commemoration of this special occasion noted that for Parliament to over-rule any Court decision without attracting gimmicks or epithets like 'High Court of Parliament', there are two pre-conditions: first is that the Constitution must be changed or amended and the second requirement is that the law must be lawfully made.[22]
  3. With respect to the first point it was contended that there must be a constitutional amendment that specifically provided for the Parliament to over-rule a decision of the Supreme Court. And lawfully made meant that it must muster the required majority to pass that amendment.
  4. While these discussions and decisions from other countries are not binding authorities for our Courts to follow, they are of persuasive value and useful guide to assist the Court to arrive at its just and fair decision.
  5. Supreme Court's interpretation and application of s19 on 12th December, 2011 in SCR 3 of 2011 remain as correctly stating that law. Looking at it from the perspective of protection of individuals and special rights of citizens, there is no other way to conclude. Otherwise Sir Michael would be left without remedy. The fact that he did not file proceedings to enforce his rights is immaterial.
  6. On the other hand, the law does not say that when a private citizen gets elected to the Parliament he forfeits all his rights under the Constitution. The Constitution does not sanction usurpation of power at the expense of an incumbent Prime Minister who is medically unwell and not actively performing his official role. These are actions of desperate people for desperate reasons. It is good therefore to be reminded by these famous words of Chief Justice Sir Buri Kidu which he uttered in re Kenneth Susuve and Heni Pauta (No.2) [1982] Unreported National Court Judgment N337 where he said:

"I hold no qualms about this - a person deprived of his ordinary rights and freedoms is restricted, by virtue of being confined, from communicating with the outside world. It rests with authorities such as the Courts to ensure that they are protected and their rights respected. Constitutional guarantees are of no effect if judicial officers and other authorities do not do their duty.


Days have gone when people can say that those incarcerated lose their liberties and freedoms once the prison doors have closed behind them. The Constitution has made sure that such attitudes do not obtain in Papua New Guinea.


In this case there have been flagrant abuses of the two Applicants contrary to the Constitutional Protections afforded to them. Those officers of the Correctional Services who subjected the two Applicants to torture acted in clear violations of the dictates of the Constitution of Papua New Guinea. Their actions were oppressive, arbitrary and unconstitutional. One would have thought that if anyone is required to observe and respect what the Constitution says, it would be those who are employed by the State like officers of the Correctional Services."


  1. Those are different types of guaranteed rights violated by State agents of citizens. The right denied Sir Michael Somare is the right to stand for and to hold elective public office. Did he have to be forgotten as every focus was concentrated on eliminating him and validating Peter O'Neill's ascension to Prime Minister? He also had that right under s50 that needed recognition. This was the grave mistake made by the Parliament and the Executive Government.
  2. It is important to appreciate this at the outset because serious allegations of violations of doctrine of separation of powers have been levelled at the Judiciary and the Supreme Court is accused of overstepping this sacred no go zone by directing the Parliament to do something that it should never have done. It is only a figment of imagination that got carried away through mass hysteria of Members of Parliament who badly wanted change in the Government at that time given the very fluid state of NA coalition riddled with too much political in-fighting. Once on that band wagon, all members in O'Neill/Namah camp felt secure because they had the number and as long as they had the numbers, the majority rule had to prevail.
  3. It is therefore with sadness that I must record that history has not experienced nor seen unfolding before the judges since becoming a member of the bench in SCR 3 of 2011 that this Court could well have done without:
  4. This is a clear and direct interference by the legislative and executive arms of the government with the judicial arm of the government in the discharge of its judicial functions. Talk about doctrine of separation of powers, this is a classical case where this sad phenomenon is in action. It is now plain to see that the other two arms of the government have clearly overstepped their marks in dictating to the judiciary on what it can do and what it cannot do. And it all started because of the challenge in the Supreme Court of certain events that happened on the floor of Parliament on 2nd August, 2011. When attempts to stop the reference failed, all manner of events unfolded that not only interfered with the Supreme Court's deliberations, but also changed the factual scenario of the case that the Court was dealing with.
  5. Relying on these changed circumstances, the referrers are now asking this court to validate the election and appointment of Peter O'Neill as Prime Minister on 2nd August, 2011 and overrule its earlier majority decision in SCR 3 of 2011 of 12th December, 2011.
  6. This is a very unique position that the Court finds itself in where a subject of litigation before it is already res judicata but the referring party while refusing to comply with the earlier decision of the court had instead changed the laws and is now asking the court to determine the constitutional validity of these laws as against the previous decision of the Court. This is to me a deliberate and calculated breach or violation of the separation of powers principle purposely instigated, initiated, orchestrated or caused into motion by members of Parliament, acting on deliberate bad legal advice from those with ulterior motive to create, cause and start a collision between two arms of government to suit their own selfish ends while hiding behind the pigment of parliamentary supremacy over the judiciary.

Summary


  1. The onus was on the referrers to satisfy the court that since 9th December, 2011, the Parliament had corrected the pitfalls that the Supreme Court identified in SCR 3 of 2011 but steps taken failed to measure up to that and the findings of the court remain undisturbed. Essentially what this means is that:
  2. In the circumstances I conclude that the Parliament's rescission of its earlier decision of 17th May 2011 was unconstitutional and Prime Minister and National Executive Council (Amendment) Act 2011 and Prime Minister and National Executive Council (Amendment No.2) Act 2011 are both unconstitutional and of no force or effect.
  3. As for the way forward from here, having read the draft opinion of my brother Gavara-Nanu, J on the discussion on de facto and de jure government, the terms normally used to describe or in connection with a government becoming seized of power and holds onto power by unilateral means but not recognised by the Constitution while the legitimate government is forced out of action and remains inactive for political inexpediency or other reasons, I endorse his comments which are consistent with the views I expressed in SCR 3 of 2011 concerning the existence of two different regimes.
  4. If there had been a collegiate approach to the drafting of our respective opinions, I would have explored this more fully given that the subject was not addressed in the reference arguments and was not part of the reference questions. But ideally this is an alternative solution for recognition of O'Neill/Namah regime until the elections because there is nothing one can do about the law as found by the Supreme Court. This is the opinion from the highest court of the country based on the Constitution and the current constitutional framework that constitutes democracy in this country.
  5. This is the only institution that the Constitution has entrusted with the People's authority and power to interpret and apply the laws of this country. Lawyers should be advising their clients to respect the decision of the highest court of the land by taking advantage of the middle line approach that this decision offers in the amended orders issued in the best interest of the country.
  6. And I am firmly of the view that this conciliatory approach to resolving the impasse is more pertinent now for the parties on both sides of the divide to appreciate by respecting the Supreme Court's opinion. If there is any room for reconciliation between all the stakeholders in the light of what the country has experienced in the last nine months, this is the time to make the move.
  7. I agree with the Orders as proposed.
  8. Appended to this judgment are the following appendices:

_________________________________________


APPENDICES


APPENDIX A


Short answers to Reference Questions


Short Answers to Reference Questions for SCR 1 and 2 of 2012.


QUESTIONS
ANSWERS
Decision by Parliament on 9 December 2011 and Schedule 1.10 and Section 104(2) of the Constitution

  1. Does Schedule 1.10 of the Constitution allow Parliament to reverse an earlier decision of Parliament by a new Motion?
Yes and No, depending on the reasons and circumstances justifying the Parliament reversing its earlier decision.
  1. Does any other section or schedule allow Parliament to reverse an earlier decision of Parliament by a new Motion?
No
  1. If the answer to either question (1) or question (2) is yes, can Parliament reverse a decision to grant leave for Member to be vacant?
Not as a matter of course, but in very exceptional circumstances if justified by law and conscience.
  1. If the answer to question (3) is yes, was the decision of Parliament to rescind the leave given to Sir Michael Somare for the May sittings valid?
Reasons for rescinding leave previously given was driven by malice, ill-willed, selfish, unreasonable and greedy therefore invalid.
  1. If a Member of Parliament has been absent without leave of the Parliament during the whole of three consecutive sessions of Parliament, does the seat of such member become vacant by operation of law in Section 104(2)?
Unnecessary to answer. Hypothetical and res judicata.
  1. If the answer to question (5) is yes, did Sir Michael Somare cease to be a Member of Parliament on 9 December 2011?
Unnecessary to answer. Hypothetical and res judicata.
  1. If the answer to question (5) is no, when did Sir Michael Somare cease to be a Member of Parliament?
Sir Michael Somare has never ceased to be a Member of Parliament.
Inherent Powers of Parliament
  1. Does Parliament have inherent powers outside those set out in the Constitution?
No.
  1. If the answer to question (8) is yes, what inherent powers?
Unnecessary to answer.
  1. If the answer to question (8) is yes, does Parliament have the inherent power to elect a Prime Minister when the incumbent Prime Minister has abandoned his position?
Unnecessary to answer. Hypothetical. Res judicata.
Prime Minister and National Executive Council (Amendment) Act 2011 and Sections 110(2) and 143 of the Constitution
  1. Does section 110(2) of the Constitution permit the making by Parliament of legislation with retrospective effect?
Yes and No, depending on circumstances and good reasons justifying Parliament passing such laws.
  1. If the answer to question (11) is no, then does any other provision of the Constitution allow Parliament to make retrospective legislation?
No other law except s.110(2)
  1. If the answer to question (12) is no, then does Parliament have inherent powers to make retrospective legislation?
No
  1. Does Section 143 of the Constitution allow for an Act of Parliament to impose a time limit on the duration of the appointment of an Acting Prime Minister?
No
  1. If the answer to question (14) is yes, then did Sam Abal cease to be Acting Prime Minister on the expiry of three months from his date of appointment as Acting Prime Minister?
Unnecessary to answer.
  1. If the answer to question (14) is yes, did Sir Michael Somare cease to be Prime Minister on the expiration of 3 months after the appointment of Sam Abal as acting Prime Minister when Michael Somare failed to return to Papua New Guinea and resume the office and duties of Prime Minister?
No.

Prime Minister and National Executive Council (Amendment No. 2) Act 2011
  1. Is the age restriction of 72 on a Prime Minister reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind?
No.
  1. If the answer to question (17) is yes, is the age restriction constitutionally valid pursuant to Section 38 of the Constitution?
No. Unconstitutional
Powers of Governor General Section 142(2) and Section 86
  1. Does the Governor General have any discretion under S142 (2) of the Constitution to refuse to appoint a Prime Minister in accordance with a decision of Parliament?
Irrelevant and unnecessary to answer this question. Makes no difference whether GG signs or refuses to sign. If election of PM by Parliament is unlawful, it is immaterial whether GG appoints him or not. Signing of instrument won't validate what is void ab initio.
  1. Does the Governor General have any reserve powers under the Constitution in Section 86 or at all to refuse to appoint a Prime Minister in accordance with a decision of Parliament?
Irrelevant and unnecessary to answer as explained above.
  1. Did the Governor General have any power or discretion to refuse to appoint Peter O'Neill on the 13 December 2011 as Prime Minister?
Irrelevant and unnecessary to answer as explained above.
Election of Peter O'Neill as Prime Minister Section 99(3) and Section 134 of the Constitution
  1. Is the election of Peter O'Neill as Prime Minister by Parliament on 12 December 2011 non-justiciable:
Legality of appointment of Peter O'Neill has been determined in SCR 3 of 2011 and is res judicata.
(a) By virtue of Section 99(3) of the Constitution, or
Ditto
(b) By virtue of Section 134 of the Constitution, or
Ditto
(c) By virtue of both Section 99(3) and Section 134 when read together?
Ditto
  1. If the election of Peter O'Neill on 12 December 2011 is justiciable, was the election validly done in accordance with section 142 of the Constitution?
Ditto
Appointment of Peter O'Neill as Prime Minister on 14 December 2011 Section 142(2)
  1. Are decisions by the Head of State non-justiciable under the Constitutional laws of Papua New Guinea?
Ditto
  1. Is the appointment of Peter O'Neill by the Governor General pursuant to Section 142(2) of the Constitution justiciable?
Ditto
Power of Supreme Court to make Orders which interfere with and affect the procedures and decisions of Parliament Section 99(3) and Section 134 of the Constitution.
  1. What Constitutional powers if any does the Supreme Court have to make Orders which affect the powers of Members in Parliament during a sitting of Parliament?
Supreme Court as the custodian of the Constitution as the power to review all acts and omissions of both the Legislature and Executive and give appropriate directions where rights are infringed by the actions or omissions of the Legislature or Executive, pursuant to ss.155(2)(c), 157 and 158 Constitution.

Otherwise, it is a question of facts and how those facts are interpreted.
  1. Does the Doctrine of Separation of Powers as entrenched in the Constitution in Section 99(3) preclude the Supreme Court from making Orders which affect the inner workings of Parliament?
Opinionated assertions. How did they affect the inner working of Parliament?
  1. Does Section 134 of the Constitution prevent the Supreme Court from making Orders which dictate the carrying out of a procedure in Parliament?
Opinionated assertion. Conjecture and hypothetical. How did they affect the inner working of Parliament?
  1. Does Section 99(3) and/or Section 134 of the Constitution prevent the Supreme Court from ordering the Parliament to reinstate Sir Michael Somare as Prime Minister?
Orders merely complying with opinion of the Court in SCR 3 of 2011 as envisaged under s.19(1) and (2) of the Constitution.
  1. Does Parliament have the power, under Schedule 1.10(1) and (3) [1.2.10(1) and (3)] of the Constitution or any other constitutional law, to rescind its previous resolutions and decisions?
Already answered in Q.1- Q.5.
  1. Does Section 141 of the Constitution permit a person who is not a Member of Parliament to hold office as Prime Minister?
Unnecessary to answer. Speculative
  1. Does Parliament have the power under Section 109 of the Constitution to pass the Prime Minister and National Executive Council (Amendment) Act 2011 on 12 December 2011?
Depending on the purpose for this legislation. In this case the purpose of enacting PM&NEC(Amendment) Act 2011 is borne out of malice, ill-willed, selfish and not made for peace, order, good government and welfare of People of PNG except to legitimise and keep in power a unilateral government declared unconstitutional by the Supreme Court.
  1. Does the Speaker of Parliament have the power under Section 110 of the Constitution to certify the Prime Minister and National Executive Council (Amendment) Act 2011 on 12 December 2011?
The Act is unconstitutional as it purports to validate or reverse a decision of the Supreme Court on a constitutional interpretation and application case that can only be reversed by the Supreme Court or by the Parliament by a Constitutional amendment.

_________________________________


APPENDIX B


Referrors' Agreed Statement of Facts


The background facts advanced by the lawyers for the referrers for purposes of these two references are:


(1) On 17 May 2011 during the May meeting of Parliament a motion was passed that leave of absence be granted to Sir Michael Somare for the duration of the meeting on the ground of ill health.

(2) During the June meeting of Parliament in 2011, no motion was introduced in Parliament seeking further leave of absence for Sir Michael Somare.

(3) During the August meeting of Parliament in 2011, no motion was introduced in Parliament seeking further leave of absence for Sir Michael Somare.

(4) Sir Michael Somare was absent from Parliament during three consecutive meetings of parliament being the may, June and August 2011 meetings.

(5) On 2 August 2011 Parliament passed a motion that pursuant to Section 142(2) of the Constitution and Schedule 1.10(3) of the Constitution and the inherent powers of the Parliament the office of the Prime Minister was vacant.

(6) On 2 August 2011, Peter O'Neill was elected to be Prime Minister on a vote of 70 to 24 members.

(7) On 2 August 2011, the Governor General Sir Michael Ogio appointed Peter O'Neil to be Prime Minister, Belden Namah as Deputy Prime Minster and appointed 11 new Ministers and dismissed 28 of the 33 existing Members of Parliament form the Office of Minister. These appointments and dismissals were published in National Gazette no G205 on 3 August 2011.

(8) By the decision of the Governor General on 2 August 2011 and publication of such decision in the National Gazette on 3 August 2011 Dr Allan Marat was appointed a Minister and Sir Arnold Amet was dismissed from being a Minister.

(9) A Supreme Court Reference was filed in August 2011 by the East Sepik Provincial Executive seeking the Supreme Court's opinion on whether the decision set out in paragraphs 3 and 4 were valid.

(10) On 9 December 2011, Parliament rescinded its decision to grant a leave of absence to Sir Michael Somare for the May sittings of Parliament. This meant that in effect Sir Michael Somare was absent from 3 meetings of Parliament without leave, and pursuant to Section 142 of the Constitution a vacancy existed.

(11) On 9 December 2011 the Governor General declared a vacancy of the East Sepik Provincial seat in the National Parliament as Parliament had rescinded on 9 December 2011 its decision to grant leave of absence to Sir Michael Somare for the May 2011 meeting of the National Parliament and as a consequence Sir Michael Somare had been absent from three consecutive meetings of the National Parliament without leave of Parliament. This declaration was published in the National Gazette No. G363 on 9 December 2011.

(12) On 12 December 2011, the Standing Orders were suspended and a Bill being the Prime Minister and National Executive Council (Amendment) Bill 2011 was passed through Parliament which made amendments to the Prime Minister and National Executive Council Act 2002, providing a time limit for an Acting Prime Minister to be in office. The Amendment provided that should a Prime Minister fail to return to resume his position within three months of the appointment of Acting Prime Minister a vacancy in the office of Prime Minister would occur. These amendments were made retrospective to 1 January 2011.

(13) The Speaker of Parliament certified the Prime Minister and National Executive Council (Amendment) Act 2011 on 12 December 2011.

(14) Parliament then elected Peter O'Neill as Prime Minister on 12 September 2011.

(15) On 12 December 2011 the Supreme Court found that the declaration on 2 August 2010 of the vacancy in the office of Prime Minister was invalid – but only effective from 12 December 2011.

(16) The Supreme Court found the election of Peter O'Neill as Prime Minister on 2 August 2011 consequently invalid – but also only effective from the 12 December 2011.

(17) On 13 December 2011 Parliament received and noted the Opinion of the Supreme Court in SCR 3 of 2011.

(18) On 13 December 2011, following the Order by the Supreme Court to restore Sir Michael Somare as Prime Minister effective on 12 December 2011 and on the advice of the Acting State Solicitor, the Governor General dismissed 10 Ministers from the original Somare government. This was published in the National Gazette no G390 on the same day being 13 December 2011.

(19) Also on 13 December 2011, Sir Michael Somare as Prime Minister determined Ministerial Responsibilities for his original Ministers which also included Sir Arnold Amet's determination as Minister for Justice and Attorney General. This was despite the fact that the original Somare Ministers had not been re-appointed by the Governor General. These Members were given Ministerial portfolios by Sir Michael Somare but they were not actually appointed Ministers by the Governor General at that time. The portfolio determinations were also published in the National Gazette No. G390 on the same day being 13 December 2011. Note _ National Gazette No. G390 was wrongly numbered so in National Gazette No. 372 – the mistake was corrected and G390 was renumbered to G371).

(20) At no stage following the Supreme Court decision of 12 December 2011 was Sir Michael Somare re-appointed or sworn in as Prime Minister by the Governor General.

(21) The Governor General despite the provisions of Section 142(2) of the Constitution saying that the Governor General shall only appoint a Prime minister in accordance with a decision of Parliament, refused to accept the decision of Parliament contrary to Section 142(2) of the Constitution and refused to swear in Peter O'Neill as Prime Minister.

(22) The National Executive Council pursuant to Section 94(1) of the Constitution then on the advice of Parliament suspended the Governor General for failing to act in accordance with his obligations under the Constitution, particularly Section 142(2). This suspension was published in the National Gazette No G377.

(23) The Speaker of Parliament was then made Acting Governor General by operation of law being Section 95(2) of the Constitution.

(24) On 14 December 2011, the Acting Governor General pursuant to Section 142(2) of the Constitution appointed Peter O'Neill as Prime Minister, acting in accordance with the decision of Parliament made on 12 December 2011. This appointment was published in the National Gazette No G376 on 14 December 2011.

(25) Also on 14 December 2011, the Acting Governor General pursuant to Section 3(2) of the Prime Minister and National Executive Council Act 2002 appointed Belden Namah to be Deputy Prime Minister, acting on and in accordance with the advice of Prime Minister O'Neill. This appointment was published in the national Gazette No G376 on 14 December 2011.

(26) Also on 14 December 2011, the Acting Governor General pursuant to Section 144(4)(b)(i) of the Constitution acting on and with the advice of the Prime Minister dismissed 20 members of Parliament from the Office of the Minister, including Sir Arnold Amet. These dismissals were published in the National Gazette No G376 on 14 December 2011.

(27) Also on 14 December 2011, the Acting Governor General pursuant to Section 144(2) of the Constitution appointed 33 members of Parliament to the Office of Minister, including Dr. Allan Marat. These appointments were published in National Gazette No G376 on 14 December 2011.

(28) On 14 December 2011 the Prime Minister Peter O'Neill pursuant to Section 148 of the Constitution signed the determination of Ministerial responsibilities and made Dr Allan Marat Attorney General. This was published on 14 December 2011 in the National Gazette No G374.

(29) On 19 December 2011, Sir Michael Ogio wrote to Parliament and informed them that he recognized Peter O'Neill as the Prime Minister as duly elected by Parliament and Peter O'Neill was duly sworn in as Prime Minister by the Acting Governor General. He also stated that he had received flawed legal advice from the First Legislative counsel being Hudson Ramatlap and the State Solicitor by way of a letter from the Chief Secretary when had refused to swear in Peter O'Neill as the elected Prime Minister on 13 December 2011.

(30) Parliament lifted the suspension of the Governor General and Sir Michael Ogio was restored as Governor General on 20 December 2011.

(31) On 21 December 2011, the Standing Orders were suspended and a Bill being the Prime Minister and National Executive Council (Amendment No.2) Bill 2011 was passed through Parliament which made further amendments to the Prime Minister and National Executive Council Act 2002, providing an age limit for a Prime Minister being 72 and further providing validation for the decisions and actions of the Prime Minister O'Neill's government from 2 August 2011.

(32) The Speaker of Parliament certified the Prime Minister and National Executive Council (Amendment No.2) Act 2011 on 21 December 2011.

____________________________________


APPENDIX C


Texts of Legislations


(1) Constitutional Laws

38. General qualifications on qualified rights.


(1) For the purposes of this Subdivision, a law that complies with the requirements of this section is a law that is made and certified in accordance with Subsection (2), and that—


(a) regulates or restricts the exercise of a right or freedom referred to in this Subdivision to the extent that the regulation or restriction is necessary—


(i) taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in—


(A) defence; or

(B) public safety; or

(C) public order; or

(D) public welfare; or

(E) public health (including animal and plant health); or

(F) the protection of children and persons under disability (whether legal or practical); or

(G) the development of under-privileged or less advanced groups or areas; or


(ii) in order to protect the exercise of the rights and freedoms of others; or


(b) makes reasonable provision for cases where the exercise of one such right may conflict with the exercise of another,


to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.


(2) For the purposes of Subsection (1), a law must—


(a) be expressed to be a law that is made for that purpose; and

(b) specify the right or freedom that it regulates or restricts; and

(c) be made, and certified by the Speaker in his certificate under Section 110 (certification as to making of laws) to have been made, by an absolute majority.


(3) The burden of showing that a law is a law that complies with the requirements of Subsection (1) is on the party relying on its validity.


39. "Reasonably justifiable in a democratic society", etc.


(1) The question, whether a law or act is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, is to be determined in the light of the circumstances obtaining at the time when the decision on the question is made.


(2) A law shall not be declared not to be reasonably justifiable in a society having a proper regard for the rights and dignity of mankind except by the Supreme Court or the National Court, or any other court prescribed for the purpose by or under an Act of the Parliament, and unless the court is satisfied that the law was never so justifiable such a declaration operates as a repeal of the law as at the date of the declaration.


(3) For the purposes of determining whether or not any law, matter or thing is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind, a court may have regard to—


(a) the provisions of this Constitution generally, and especially the National Goals and Directive Principles and the Basic Social Obligations; and


(b) the Charter of the United Nations; and


(c) the Universal Declaration of Human Rights and any other declaration, recommendation or decision of the General Assembly of the United Nations concerning human rights and fundamental freedoms; and


(d) the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto, and any other international conventions, agreements or declarations concerning human rights and fundamental freedoms; and


(e) judgements, reports and opinions of the International Court of Justice, the European Commission of Human Rights, the European Court of Human Rights and other international courts and tribunals dealing with human rights and fundamental freedoms; and


(f) previous laws, practices and judicial decisions and opinions in the country; and


(g) laws, practices and judicial decisions and opinions in other countries; and


(h) the Final Report of the pre-Independence Constitutional Planning Committee dated 13 August 1974 and presented to the pre-Independence House of Assembly on 16 August 1974, as affected by decisions of that House on the report and by decisions of the Constituent Assembly on the draft of this Constitution; and


(i) declarations by the International Commission of Jurists and other similar organizations; and


(j) any other material that the court considers relevant.


44. Freedom from arbitrary search and entry.


No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law—


(a) that makes reasonable provision for a search or entry—


(i) under an order made by a court; or


(ii) under a warrant for a search issued by a court or judicial officer on reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search; or


(iii) that authorizes a public officer or government agent of Papua New Guinea or an officer of a body corporate established by law for a public purpose to enter, where necessary, on the premises of a person in order to inspect those premises or anything in or on them in relation to any rate or tax or in order to carry out work connected with any property that is lawfully in or on those premises and belongs to the Government or any such body corporate; or


(iv) that authorizes the inspection of goods, premises, vehicles, ships or aircraft to ensure compliance with lawful requirements as to the entry of persons or importation of goods into Papua New Guinea or departure of persons or exportation of goods from Papua New Guinea or as to standards of safe construction, public safety, public health, permitted use or similar matters, or to secure compliance with the terms of a licence to engage in manufacture or trade; or


(v) for the purpose of inspecting or taking copies of documents relating to—


(A) the conduct of a business, trade, profession or industry in accordance with a law regulating the conduct of that business, trade, profession or industry; or


(B) the affairs of a company in accordance with a law relating to companies; or


(vi) for the purpose of inspecting goods or inspecting or taking copies of documents, in connexion with the collection, or the enforcement of payment of taxes or under a law prohibiting or restricting the importation of goods into Papua New Guinea or the exportation of goods from Papua New Guinea; or


(b) that complies with Section 38 (general qualifications on qualified rights).


49. Right to privacy.


Every person has the right to reasonable privacy in respect of his private and family life, his communications with other persons and his personal papers and effects, except to the extent that the exercise of that right is regulated or restricted by a law that complies with Section 38 (general qualifications on qualified rights).


Special Rights of Citizens.


50. Right to vote and stand for public office.


(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—


(a) is under sentence of death or imprisonment for a period of more than nine months; or

(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph,

has the right, and shall be given a reasonable opportunity—

(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e) to hold public office and to exercise public functions.


(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.


51. Right to freedom of information.


(1) Every citizen has the right of reasonable access to official documents, subject only to the need for such secrecy as is reasonably justifiable in a democratic society in respect of—


(a) matters relating to national security, defence or international relations of Papua New Guinea (including Papua New Guinea's relations with the Government of any other country or with any international organization); or


(b) records of meetings and decisions of the National Executive Council and of such executive bodies and elected governmental authorities as are prescribed by Organic Law or Act of the Parliament; or


(c) trade secrets, and privileged or confidential commercial or financial information obtained from a person or body; or


(d) parliamentary papers the subject of parliamentary privilege; or


(e) reports, official registers and memoranda prepared by governmental authorities or authorities established by government, prior to completion; or


(f) papers relating to lawful official activities for investigation and prosecution of crime; or


(g) the prevention, investigation and prosecution of crime; or


(h) the maintenance of personal privacy and security of the person; or


(i) matters contained in or related to reports prepared by, on behalf of or for the use of a governmental authority responsible for the regulation or supervision of financial institutions; or


(j) geological or geophysical information and data concerning wells and ore bodies.


(2) A law that complies with Section 38 (general qualifications on qualified rights) may regulate or restrict the right guaranteed by this section.


(3) Provision shall be made by law to establish procedures by which citizens may obtain ready access to official information.


(4) This section does not authorize—


(a) withholding information or limiting the availability of records to the public except in accordance with its provisions; or


(b) withholding information from the Parliament.


52. Right to freedom of movement.


(1) Subject to Subsection (3), no citizen may be deprived of the right to move freely throughout the country, to reside in any part of the country and to enter and leave the country, except in consequence of a law that provides for deprivation of personal liberty in accordance with Section 42 (liberty of the person).


(2) No citizen shall be expelled or deported from the country except by virtue of an order of a court made under a law in respect of the extradition of offenders, or alleged offenders, against the law of some other place.


(3) A law that complies with Section 38 (general qualifications on qualified rights) may regulate or restrict the exercise of the right referred to in Subsection (1), and in particular may regulate or restrict the freedom of movement of persons convicted of offences and of members of a disciplined force.


99. Structure of Government.


(1) Subject to and in accordance with this Constitution, the power, authority and jurisdiction of the People shall be exercised by the National Government.
(2) The National Government consists of three principal arms, namely:—


(a) the National Parliament, which is an elective legislature with, subject to the Constitutional Laws, unlimited powers of law-making; and


(b) the National Executive; and


(c) the National Judicial System, consisting of a Supreme Court of Justice and a National Court of Justice, of unlimited jurisdiction, and other courts.


(3) In principle, the respective powers and functions of the three arms shall be kept separate from each other.


(4) Subsection (2) is descriptive only and is non-justiciable.


Division 2.—The National Parliament.
Subdivision A.—The Legislative Power.


100. Exercise of the legislative power.


(1) Subject to this Constitution, the legislative power of the People is vested in the National Parliament.


(2) Subsection (1) does not prevent a law from conferring on an authority other than the Parliament legislative powers or functions (including, if the law so provides, a further power or further powers of delegation and sub-delegation).


(3) Nothing in any Constitutional Law enables or may enable the Parliament to transfer permanently, or divest itself of, legislative power.


104. Normal term of office.


(1) An elected member of the Parliament takes office on the day immediately following the day fixed for the return of the writ for the election in his electorate.


(2) The seat of a member of the Parliament becomes vacant—


(a) if he is appointed as Governor-General; or


(b) upon the expiry of the day fixed for the return of the writs, for the general election after he last became a member of the Parliament; or


(c) if he resigns his seat by notice in writing to the Speaker, or in the case of the Speaker to the Clerk of the Parliament; or


(d) if he is absent, without leave of the Parliament, during the whole of three consecutive meetings of the Parliament unless Parliament decides to waive this rule upon satisfactory reasons being given; or


(e) if, except as authorized by or under an Organic Law or an Act of the Parliament, he directly or indirectly takes or agrees to take any payment in respect of his services in the Parliament; or


(f) if he becomes disqualified under Section 103 (qualifications for and disqualifications from membership); or


(g) on his death; or


(h) if he is dismissed from office under Division III.2 (leadership code).


(3) For the purposes of Subsection (2)(d), a meeting of the Parliament commences when the Parliament first sits following a general election, prorogation of the Parliament or an adjournment of the Parliament otherwise than for a period of less than 12 days and ends when next the Parliament is prorogued or adjourned otherwise than for a period of less than 12 days.


Subdivision C.—The Speaker and the Deputy Speaker.
107. Offices of Speaker and Deputy Speaker.


(1) There shall be offices of Speaker and Deputy Speaker of the National Parliament.


(2) The Speaker and the Deputy Speaker must be members of the Parliament, and shall be elected by the Parliament by secret ballot in accordance with the Standing Orders of the Parliament.


(3) The Speaker and the Deputy Speaker hold office, and their offices become vacant, in accordance with the Constitutional Laws and the Standing Orders of the Parliament.


(4) No Minister or Parliamentary Leader of a registered political party may be the Speaker or Deputy Speaker, and if a Speaker or Deputy Speaker becomes a Minister or Parliamentary Leader of a registered political party he vacates his office as Speaker or Deputy Speaker, as the case may be.


108. Functions of the Speaker and Deputy Speaker.


(1) The Speaker is responsible, subject to and in accordance with the Constitutional Laws, the Acts of the Parliament and the Standing Orders of the Parliament, for upholding the dignity of the Parliament, maintaining order in it, regulating its proceedings and administering its affairs, and for controlling the precincts of the Parliament as defined by or under an Act of the Parliament.


(2) In the event of a vacancy in the office of the Speaker or his absence from the country or from the Parliament, and otherwise as determined by or under a Constitutional Law, an Act of the Parliament or the Standing Orders of the Parliament, the Deputy Speaker has, subject to Section 95 (Acting Governor-General), all the rights, privileges, powers, functions, duties and responsibilities of the Speaker.


(3) A Constitutional Law, an Act of the Parliament or the Standing Orders of the Parliament may provide for other powers, functions, duties and responsibilities of the Speaker and the Deputy Speaker.


Subdivision D.—Powers, Privileges and Procedures.
109. General power of law-making.


(1) Subject to this Constitution, the Parliament may make laws, having effect within and outside the country, for the peace, order and good government of Papua New Guinea and the welfare of the People.


(2) In particular, Acts of the Parliament, not inconsistent with the Constitutional Laws, may provide for all matters that are necessary or convenient to be prescribed for carrying out and giving effect to this Constitution.


(3) No law made by the Parliament is open to challenge in any court on the ground that—


(a) it is not for the peace, order or good government of Papua New Guinea or the welfare of the People; or


(b) it purports to have extra-territorial effect.


(4) Each law made by the Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit, and there is no presumption against extra-territoriality.


110. Certification as to making of laws.


(1) Subject to Section 137(3) (Acts of Indemnity) and to any Act of the Parliament made for the purposes of Subsection (3), the Speaker shall certify under the National Seal, in accordance with the Standing Orders of the Parliament, that a law has been made by the Parliament and, subject to Subsection (2), the law comes into operation on the date of the certificate.


(2) Nothing in Subsection (1) prevents a law—


(a) being expressed to come, or to be deemed to have come, into force on a date specified by, or fixed in accordance with, law; or


(b) being retrospective or retroactive.


(3) An Act of the Parliament or the Standing Orders of the Parliament may make provision under which a law made by the Parliament may, at the direction of the Head of State, acting with, and in accordance with, the advice of the National Executive Council, be recommitted to the Parliament for the consideration of amendments proposed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council.


115. Parliamentary privileges, etc.


(1) 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.


(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).


(3) No member of the Parliament is subject to the jurisdiction of any court in respect of the exercise of his powers or the performance of his functions, duties or responsibilities as such, but this subsection does not affect the operation of Division III.2 (leadership code).


(4) No member of the Parliament is liable to civil or criminal proceedings, arrest, imprisonment, fine, damages or compensation by reason of any matter or thing that he has brought by petition, question, bill, resolution, motion or otherwise, or has said before or submitted to the Parliament or a committee of the Parliament.


(5) No member of the Parliament or other person is liable to civil or criminal proceedings, arrest, imprisonment, fine, damages or compensation by reason of—


(a) an act done under the authority of the Parliament or under an order of the Parliament or a committee of the Parliament; or


(b) words spoken or used, or a document or writing made or produced, under an order or summons made or issued under the authority of the Parliament or a committee of the Parliament.


(6) Members of the Parliament are free from arrest for civil debt during meetings of the Parliament and during the period commencing three days before, and ending three days after, a meeting when they are travelling from their respective electorates to attend the meeting or are returning to their electorates from the meeting.


(7) No process issued by any court in the exercise of its civil jurisdiction shall be served or executed through the Speaker, an officer of the Parliament or a member of the Parliamentary Service, or within the precincts of the Parliament (as defined by or under an Act of the Parliament) while it is sitting.


(8) The powers conferred by Section 109 (general powers of law-making) extend to the making of laws—


(a) declaring further powers (other than legislative powers), privileges and immunities of the Parliament, and of its members and committees; and


(b) providing for the manner in which powers, privileges and immunities provided for by or under this section may be exercised or upheld.


(9) The powers and privileges conferred by or under this section do not and shall not include the power to impose or provide for the imposition of a fine, imprisonment, forfeiture of property or other penalty of a criminal nature, but this subsection does not prevent the creation of offences for the purposes of this section that are triable within the National Judicial System.


134. Proceedings non-justiciable.


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 Section 110 (certification as to making of laws) is conclusive as to the matters required to be set out in it.


135. Questions as to membership, etc.


The National Court has jurisdiction to determine any question as to—
(a) the qualifications of a person to be or to remain a member of the Parliament; or
(b) the validity of an election to the Parliament.


Subdivision B.—The Ministry.


141. Nature of the Ministry: collective responsibility.


The Ministry is a Parliamentary Executive, and therefore—


(a) no person who is not a member of the Parliament is eligible to be appointed to be a Minister, and, except as is expressly provided in this Constitution to the contrary, a Minister who ceases to be a member of the Parliament ceases to hold office as a Minister; and


(b) it is collectively answerable to the People, through the Parliament, for the proper carrying out of the executive government of Papua New Guinea and for all things done by or under the authority of the National Executive; and


(c) it is liable to be dismissed from office, either collectively or individually, in accordance with this Subdivision.


142. The Prime Minister.


(1) An office of Prime Minister is hereby established.


(2) The Prime Minister shall be appointed, at the first meeting of the Parliament after a general election and otherwise from time to time as the occasion for the appointment of a Prime Minister arises, by the Head of State, acting in accordance with a decision of the Parliament.


(3) 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.


(4) If the Parliament is not in session when a Prime Minister is to be appointed, the Speaker shall immediately call a meeting of the Parliament, and 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.


(5) The Prime Minister—


(a) shall be dismissed from office by the Head of State if the Parliament passes, in accordance with Section 145 (motions of no confidence), a motion of no confidence in him or the Ministry, except where the motion is moved within the last 12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election; and


(b) may be dismissed from office in accordance with Division III.2 (leadership code); and


(c) may be removed from office by the Head of State, acting in accordance with a decision of the Parliament, if the Speaker advises the Parliament that two medical practitioners appointed by the National Authority responsible for the registration or licensing of medical practitioners have jointly reported in accordance with an Act of the Parliament that, in their professional opinions, the Prime Minister is unfit, by reason of physical or mental incapacity, to carry out the duties of his office.


(6) The Prime Minister may be suspended from office—


(a) by the tribunal appointed under an Organic Law made for the purposes of Section 28 (further provisions), pending an investigation into a question of misconduct in office within the meaning of Division III.2 (leadership code), and any resultant action; or


(b) in accordance with an Act of the Parliament, pending an investigation for the purposes of Subsection (5)(c), and any resultant action by the Parliament.


(7) An Organic Law made for the purposes of Subdivision VI.2.H (Protection of Elections from Outside or Hidden Influence and Strengthening of Political Parties) may provide that in certain circumstances a member of the Parliament is not eligible to be appointed to or hold the office of Prime Minister.


143. Acting Prime Minister.


(1) Subject to Subsection (2) an Act of the Parliament shall make provision for and in respect of the appointment of a Minister to be Acting Prime Minister to exercise and perform the powers, functions, duties and responsibilities of the Prime Minister when—


(a) there is a vacancy in the office of Prime Minister; or


(b) the Prime Minister is suspended from office; or


(c) the Prime Minister is—


(i) absent from the country; or

(ii) out of speedy and effective communication; or

(iii) otherwise unable or not readily available to perform the duties of his office.


(2) Where a Prime Minister is dismissed under Section 142(5)(a) (the Prime Minister) the person nominated under Section 145(2)(a) (motions of no confidence)—


(a) becomes the Acting Prime Minister until he is appointed a Prime Minister in accordance with Section 142(2) (the Prime Minister); and


(b) may exercise and perform all the powers, functions, duties and responsibilities of a Prime Minister.


(3) The question whether the occasion for the appointment of an Acting Prime Minister or for the exercise or performance of a power, function, duty or responsibility by an Acting Prime Minister, under this section has arisen or has ceased, is non-justiciable.


144. Other Ministers.


(1) There shall be such number of Ministers (other than the Prime Minister), not being less than six or not exceeding 32 from time to time, as is determined by or under an Organic Law.


(2) The Ministers, other than the Prime Minister, shall be appointed by the Head of State, acting with, and in accordance with, the advice of the Prime Minister.


(3) A Minister, other than the Prime Minister, may be suspended from office in accordance with an Organic Law made for the purposes of Section 28(2) (further provisions).


(4) A Minister other than the Prime Minister—


(a) shall be dismissed from office by the Head of State if the Parliament passes, in accordance with Section 145 (motions of no confidence), a motion of no confidence in him; and


(b) may be dismissed from office—


(i) by the Head of State, acting with, and in accordance with, the advice of the Prime Minister; or


(ii) in accordance with Division III.2 (leadership code).


(5) An Organic Law made for the purposes of Subdivision VI.2.H (Protection of Elections from Outside or Hidden Influence and Strengthening of Political Parties) may provide that in certain circumstances a member of the Parliament is not eligible to be appointed to or hold the office of Minister.


145. Motions of no confidence.


(1) For the purposes of Sections 142 (the Prime Minister) and 144 (other Ministers), a motion of no confidence is a motion—


(a) that is expressed to be a motion of no confidence in the Prime Minister, the Ministry or a Minister, as the case may be; and


(b) of which not less than one week's notice, signed by a number of members of the Parliament being not less than one-tenth of the total number of seats in the Parliament, has been given in accordance with the Standing Orders of the Parliament.


(2) A motion of no confidence in the Prime Minister or the Ministry—


(a) moved during the first four years of the life of Parliament shall not be allowed unless it nominates the next Prime Minister; and


(b) moved within 12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election shall not be allowed if it nominates the next Prime Minister.


(3) A motion of no confidence in the Prime Minister or the Ministry moved in accordance with Subsection (2)(a) may not be amended in respect of the name of the person nominated as the next Prime Minister except by substituting the name of some other person.


(4) A motion of no confidence in the Prime Minister or in the Ministry may not be moved during the period of eighteen months commencing on the date of the appointment of the Prime Minister.


Sch.1.10. Exercise and performance of powers and duties.


(1) Where a Constitutional Law confers a power or imposes a duty, the power may be exercised, or the duty shall be performed, as the case may be, from time to time as occasion requires.
(2) Where a Constitutional Law confers a power or imposes a duty on the holder of an office as such, the power may be exercised, or the duty shall be performed, as the case may be, by the holder (whether substantive or other) for the time being of the office.


(3) Where a Constitutional Law confers a power to make any instrument or decision (other than a decision of a court), the power includes power exercisable in the same manner and subject to the same conditions (if any) to alter the instrument or decision.


(4) Subject to Subsection (5), where a Constitutional Law confers a power to make an appointment, the power includes power to remove or suspend a person so appointed, and to appoint another person temporarily in the place of a person so removed or suspended or, where the appointee is for any reason unable or unavailable to perform his duties, to appoint another person temporarily in his place.


(5) The power provided for by Subsection (4) is exercisable only subject to any conditions to which the exercise of the original power or appointment was subject.


(2) Acts of Parliament
  1. Prime Minister and National Executive Council Act 2002

PART II.—DEPUTY PRIME MINISTER, ACTING PRIME MINISTER, ETC.


3. Deputy Prime Minister.


(1) The office of Deputy Prime Minister established by the Prime Minister Act (Chapter 27) continues in establishment.


(2) The Deputy Prime Minister shall be appointed by the Head of State, acting with, and in accordance with, the advice of the Prime Minister.


(3) The Deputy Prime Minister—


(a) may be dismissed from office by the Head of State acting with, and in accordance with, the advice of the Prime Minister; and


(b) ceases to hold office if he ceases to be a Minister.


(4) The Deputy Prime Minister may resign from office by written notice to the Head of State.


4. Acting Prime Minister.


(1) Subject to Subsection (2), when—


(a) there is a vacancy in the office of Prime Minister; or


(b) the Prime Minister is suspended from office; or


(c) the Prime Minister is—


(i) absent from the country; or


(ii) out of speedy and effective communication; or


(iii) otherwise unable or not readily available to perform the duties of his office,


the Deputy Prime Minister is the Acting Prime Minister.


(2) at any time when any of the circumstances referred to in Subsection (1)(a), (b) or (c) occurs and—


(a) there is a vacancy in the office of Deputy Prime Minister; or


(b) the Deputy Prime Minister is suspended from office; or


(c) the Deputy Prime Minister is—


(i) absent from the country; or


(ii) out of speedy and effective communication; or


(iii) otherwise unable or not readily available to perform the duties of Acting Prime Minister,


the Head of State, acting on advice, shall appoint a Minister to be the Acting Prime Minister for the period during which that circumstance continues to exist.


5. Allowances payable to Acting Prime Minister.


The allowances payable to the Deputy Prime Minister or a Minister while he is the Acting Prime Minister are as determined from time to time by the Parliament in accordance with a recommendation by the Salaries and Remuneration Commission.


6. Suspension from office of the Prime Minister.


(1) The Head of State, acting on advice, may, on a matter relating to the health of the Prime Minister, request the National Authority responsible for the registration and licensing of medical practitioners to appoint two medical practitioners to examine the Prime Minister and to provide him with full details of the examination, together with their joint certification that the Prime Minister—

(a) is unfit or unable, by reason of physical or mental incapacity, to carry out the duties of his office, and as to how long they consider that the unfitness or inability will continue to exist; or


(b) is not suffering from any physical or mental incapacity; or


(c) although suffering from physical or mental incapacity, is still able to carry out the duties of his office; or


(d) refuses to be examined.


(2) The Head of State, acting on advice, may, where he has called for a report under Subsection (1), suspend the Prime Minister from office.


(3) The medical practitioners referred to in Subsection (1) shall report to the Head of State as soon as practicable, but in any event no later than 28 days, after the date of their appointment.


(4) If the Prime Minister refuses to be examined by the medical practitioners referred to in Subsection (1), he is guilty of misconduct in office within the meaning of Division III.2. (leadership code) of the Constitution.


(5) Where the medical practitioners referred to in Subsection (1) certify that the Prime Minister—


(a) is not suffering from any physical or mental incapacity; or

(b) although suffering from mental or physical incapacity is still able to carry out his duties,

the Head of State, acting on advice, shall immediately remove any suspension.


(6) Where the medical practitioners referred to in Subsection (1) certify that—


(a) the Prime Minister is unfit or unable, by reason of physical or mental incapacity, to carry out the duties of his office; and


(b) the unfitness or inability will, in their opinion, continue to exist for a period of more than three months from the date on which he was examined by them,

the Head of State shall forward the report of the medical practitioners, together with their certification, to the Speaker for presentation to the Parliament, and the Prime Minister is suspended from office until the Parliament has dealt with the matter.


(7) Where the medical practitioners referred to in Subsection (1) certify that—


(a) the Prime Minister is unfit or unable, by reason of physical or mental incapacity, to carry out the duties of his office; and


(b) the unfitness or inability will, in their opinion, last for not more than three months from the date on which he was examined by them,


the Head of State, acting on advice, shall direct the medical practitioners to conduct another examination of the Prime Minister at the end of the period for which the unfitness or inability is expected to last, and the Prime Minister is suspended from office until he is certified to be fit to carry out his duties.


(8) Where, on any second or subsequent examination, the medical practitioners referred to in Subsection (1) certify that the unfitness or inability of the Prime Minister will, in their opinion, continue to exist for a period of more than three months measured from the date on which he was first examined by them, the Head of State, acting on advice, shall forward the report of the medical practitioners together with their certification to the Speaker for presentation to the Parliament and the Prime Minister is suspended from office until the Parliament has dealt with the matter.


(9) Where the Speaker has received a report under Subsection (6) or (8), he shall present it to the Parliament on the first sitting day of the Parliament after he receives it.

(10) If the Parliament is not meeting when the Speaker receives the report and is not due to meet for more than 14 days after that time, a meeting shall be called as soon as practicable.


(11) Where a report is presented to the Parliament under Subsection (6) or (8), the Parliament may advise the Head of State to remove the Prime Minister from office.


  1. Prime Minister and National Executive Council (Amendment) Act 2011

6. VALIDATION OF ELECTION OF PRIME MINISTER.


"For the avoidance of doubt and by virtue of powers conferred by section 2, 3 and 4 of this Act, it is hereby declared that:


(d) The declaration by the Speaker of Parliament on 2 August, 2011 that there was a vacancy in the office of Prime Minister, is not unlawful but is valid and effective and shall be treated by virtue of section 3 and 4 of this Act as having been lawfully and validly declared; and

(e) The decision of the Parliament on 2 August, 2011 that there was a vacancy in the office of Prime Minister is valid and effective, and shall be treated by virtue of sections 3 and 4 of this Act as having been validly decided from the time it was decided; and

(f) The election by Parliament of a new Prime Minister Peter O'Neill on 2 August, 2011 is valid and effective and shall be treated by virtue of sections 3 and 4 of this Act as having been validly elected from the time the new Prime Minister Peter O'Neill was elected."
  1. Prime Minister and National Executive Council (Amendment No.2) Act 2011

"6A. AGE LIMIT OF PRIME MINISTER


A member of Parliament is not qualified to be or to remain, Prime Minister if he has attained the age of 72 years."


"6B. VALIDATION OF ACTIONS AND DECISIONS OF THE NEW GOVERNMENT


For the avoidance of doubt and by virtue of the powers conferred by section 2, 3 and 4 of the Prime Minister and National Executive Council (Amendment) Act 2011, actions taken and decisions made following the election of the Prime Minister referred to in section 6(c) of the Prime Minister and National Executive Council (Amendment ) act 2011 by-


(e) The Prime Minister;

(f) The National Executive Council of which the Prime Minister is the chairman appointed by the Head of State acting on advice of the Prime Minister; or

(g) Individual Ministers who are members of the National Executive Council; or

(h) Government agencies and officers of the Public Service acting on the authority of the persons or body referred to in Paragraphs (a), (b) and (c) shall be treated by virtue of section 3 of the Prime Minister and National Executive Council (Amendment) Act 2011 as having been validly taken or made from the time they were taken or made."

___________________________________


APPENDIX D


Reference Questions


Decision by Parliament on 9 December 2011 and Schedule 1.0 and Section 104(2) of the Constitution


  1. Does Schedule 1.10 of the Constitution allow Parliament to reverse an earlier decision of Parliament by a new Motion?
  2. Does any other section or schedule allow Parliament to reverse an earlier decision of Parliament by a new Motion?
  3. If the answer to either question (1) or question (2) is yes, can Parliament reverse a decision to grant leave for Member to be vacant?
  4. If the answer to question (3) is yes, was the decision of Parliament to rescind the leave given to Sir Michael Somare for the May sittings valid?
  5. If a Member of Parliament has been absent without leave of the Parliament during the whole of three consecutive sessions of Parliament, does the seat of such member become vacant by operation of law in Section 104(2)?
  6. If the answer to question (5) is yes, did Sir Michael Somare cease to be a Member of Parliament on 9 December 2011?
  7. If the answer to question (5) is no, when did Sir Michael Somare cease to be a Member of Parliament?

Inherent Powers of Parliament


  1. Does Parliament have inherent powers outside those set out in the Constitution?
  2. If the answer to question (8) is yes, what inherent powers?
  3. If the answer to question (8) is yes, does Parliament have the inherent power to elect a Prime Minister when the incumbent Prime Minister has abandoned his position?

Prime Minister and National Executive Council (Amendment) Act 2011 and Sections 110(2) and 143 of the Constitution


  1. Does section 110(2) of the Constitution permit the making by Parliament of legislation with retrospective effect?
  2. If the answer to question (11) is no, then does any other provision of the Constitution allow Parliament to make retrospective legislation?
  3. If the answer to question (12) is no, then does Parliament have inherent powers to make retrospective legislation?
  4. Does Section 143 of the Constitution allow for an Act of Parliament to impose a time limit on the duration of the appointment of an Acting Prime Minister?
  5. If the answer to question (14) is yes, then did Sam Abal cease to be Acting Prime Minister on the expiry of three months from his date of appointment as Acting Prime Minister?
  6. If the answer to question (14) is yes, did Sir Michael Somare cease to be Prime Minister on the expiration of 3 months after the appointment of Sam Abal as acting Prime Minister when Michael Somare failed to return to Papua New Guinea and resume the office and duties of Prime Minister?

Prime Minister and National Executive Council (Amendment No. 2) Act 2011


  1. Is the age restriction of 72 on a Prime Minister reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind?
  2. If the answer to question (17) is yes, is the age restriction constitutionally valid pursuant to Section 38 of the Constitution?

Powers of Governor General Section 142(2) and Section 86


  1. Does the Governor General have any discretion under S142 (2) of the Constitution to refuse to appoint a Prime Minister in accordance with a decision of Parliament?
  2. Does the Governor General have any reserve powers under the Constitution in Section 86 or at all to refuse to appoint a Prime Minister in accordance with a decision of Parliament?
  3. Did the Governor General have any power or discretion to refuse to appoint Peter O'Neill on the 13 December 2011 as Prime Minister?

Election of Peter O'Neill as Prime Minister Section 99(3) and Section 134 of the Constitution


  1. Is the election of Peter O'Neill as Prime Minister by Parliament on 12 December 2011 non-justiciable:
  2. If the election of Peter O'Neill on 12 December 2011 is justiciable, was the election validly done in accordance with section 142 of the Constitution?

Appointment of Peter O'Neill as Prime Minister on 14 December 2011 Section 142(2)


  1. Are decisions by the Head of State non-justiciable under the Constitutional laws of Papua New Guinea?
  2. Is the appointment of Peter O'Neill by the Governor General pursuant to Section 142(2) of the Constitution justiciable?

Power of Supreme Court to make Orders which interfere with and affect the procedures and decisions of Parliament Section 99(3) and Section 134 of the Constitution


  1. What Constitutional powers if any does the Supreme Court have to make Orders which affect the powers of Members in Parliament during a sitting of Parliament?
  2. Does the Doctrine of Separation of Powers as entrenched in the Constitution in Section 99(3) preclude the Supreme Court from making Orders which affect the inner workings of Parliament?
  3. Does Section 134 of the Constitution prevent the Supreme Court from making Orders which dictate the carrying out of a procedure in Parliament?
  4. Does Section 99(3) and/or Section 134 of the Constitution prevent the Supreme Court from ordering the Parliament to reinstate Sir Michael Somare as Prime Minister?
  5. Does Parliament have the power, under Schedule 1.10(1) and (3) [1.2.10(1) and (3)] of the Constitution or any other constitutional law, to rescind its previous resolutions and decisions?
  6. Does Section 141 of the Constitution permit a person who is not a Member of Parliament to hold office as Prime Minister?
  7. Does Parliament have the power under Section 109 of the Constitution to pass the Prime Minister and National Executive Council (Amendment) Act 2011 on 12 December 2011?
  8. Does the Speaker of Parliament have the power under Section 110 of the Constitution to certify the Prime Minister and National Executive Council (Amendment) Act 2011 on 12 December 2011?

________________________________


APPENDIX E


Judgment on Recusal


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SC REF No. 01 OF 2012


REFERENCE PURSUANT TO CONSTITUTION, SECTION 19(1)


REFERENCE BY DR ALLAN MARAT, MP IN HIS CAPACITY AS THE ATTORNEY GENERAL AND PRINCIPAL LEGAL ADVISER TO THE NATIONAL EXECUTIVE


IN THE MATTER OF PRIME MINISTER AND NEC ACT 2002 AMENDMENTS AND RESERVE POWERS OF THE GOVERNOR-GENERAL


Waigani: Kirriwom, J
2012: 2nd & 3rd April


RULING


KIRRIWOM, J: These procedural steps were formulated in Yama v BSP; Smugglers Inn v Christopher Burt; Yakka Enterprises v Peter Yama [2008] SC921 on an application by a litigant asking for a judge to disqualify himself as a member of the bench to hear his case. I set them out at the outset as my guide in my response to the very same request being made of me by Dr Allan Marat for me to step down or recuse in the two pending Special References scheduled for hearing commencing yesterday and the next three days because of a written email that is maliciously being published on the web and in the print media purportedly authored by me.


These principles are:


"1. A prior professional relationship between a lawyer and client - even a long and proximate one - does not generally justify a reasonable apprehension that the lawyer on becoming a judge will not determine proceedings to which a former client is a party impartially on their legal and factual merits.


2. The specific subject matter upon which Hartshorn gave advice or acted upon, namely the privatisation of PNGBC, is not an issue in these proceedings. The client for whom Hartshorn acted is not a party to these proceedings. Such circumstances do not support the contention that Hartshorn J may be predisposed to find in favour of the Respondents in these proceedings.


3. There is no evidence whatsoever of any statements or actions of Hartshorn or Hartshorn J. that demonstrate any prejudice, ill feeling or animosity to the Appellants.


4. It is not the law that a Judge should disqualify himself just because a litigant has been or continues to be adversely critical of him even to the point of being defamatory and contemptuous, in unrelated matters.


5. If a litigant wishes to request a Judge to disqualify himself from hearing a case, the litigant himself or through his lawyer must file and serve on all parties to the proceedings, a Notice of Motion seeking that relief together with affidavit evidence in support of the Motion. It is not sufficient that a request to disqualify is contained in a letter to a Judge's Associate or the Registrar of the Court or the Associate to the Chief Justice or to any Judge directly.


6. It is not a valid excuse to depart from the procedure in paragraph 5 above and the rules of professional conduct generally because "counsel is acting on client's instructions". The first duty of lawyers and counsel is to the Court and secondly to the client."


For purposes of this case, it appears the relevant principle is paragraph 3, if such evidence that the applicant is relying on is properly before this court.


Dr Marat is a senior lawyer by profession and the Attorney General in the ONeil/Namah Government. He has not deposed to any affidavit of his reasons for my recusal although his lawyer Ms Twivey has and in her affidavit she annexed a number of letters exchanged between her office and my chambers, a newspaper cutting and a print-out of an internal office memorandum purportedly written by me to the Chief Justice, Deputy Chief Justice and Judges on 8 March 2012 and headed 'Some thoughts for brainstorming Thursday 10 March, 2012.'


From this application I note two things at the outset:


  1. Dr Marat has not expressed any view on this purportedly offensive publication that could portray me as already being biased against him and the O'Neil/Namah Government or having already pre-determined the issues pending before the Supreme Court;
  2. It is Ms Twivey's view of my alleged bias that is now the subject of this application. It therefore raises the question as to whether Ms Twivey, a lawyer by profession, is the well informed ordinary person on the omni-bus on Oxford Street, London or in a PMV on Waigani Drive, Port Moresby who is reading this publication. How easily would that person have access to that information in the first place in his ordinary course of business?

For me I would rather walk away from this case now and have a good night sleep and rest without unduly subjecting myself and my family to unjustified and unwarranted stresses and pressures that I have been subjected to since November 2011.


If the applicant has satisfied the requirements of the rules of evidence and the principles of confidentiality of privileged communication between designated class of persons in the normal course of conduct of their business, I will be so happy to step aside now for the sake of expediency so that these two references can get to see the light of day at the quickest possible time considering the rate of progress so far made.


I heard Ms Twivey whole day yesterday and there is not one iota of evidence as to how she can claim lawful possession of the alleged offensive publication to file in this court and use it against me to call for my recusal. This is to me like invading my privacy and stealing what is mine and intended for only those named and publishing it widely with ill-will and malice and then call on me to step aside. Is this what one calls a fair game?


I am neither denying nor admitting authorship of that publication when it is not properly before this court. And what Miss Carol from my office purportedly told Ms Twivey as my response to her enquiry is correct, word for word. And I repeat "I caused nothing to be published on PNGExposed or any other social media and had no response for lawyers or anyone else for that matter."


There are so many things published out there that are not true, many get read and many don't get read depending on what interests the reader.


Because Ms Twivey had great difficulty getting over that first hurdle of admissibility of this material as evidence of my purported bias, I am now at great disadvantage to comprehend her assertion of my being biased and also having pre-determined the two pending references against her clients based on the publication she is complaining about.


I would have preferred her to walk me through that memorandum and tell me where my biases were or perception of bias would be in so far as my fair and even minded attention to the case before me was concerned. And by whose perception? Hers? Her clients?


The publication of this confidential minute is an on-going scheme or part of this deliberate orchestration of ways and means of distabilising the Supreme Court in its deliberations on the constitutional issues pending before it, starting with the Chief Justice and now branching out to the judges, all because of a decision by the majority in SCR 3 of 2011 Supreme Court Reference by East Sepik Provincial Executive. The writing has been on the wall from day one.


I have no difficulty whatsoever in discharging my judicial functions and duties in accordance with my judicial oath of office and allegiance to the independent State of PNG and to uphold the Constitution as I have been doing for the last 15 years on the bench. If I am going to be recused on apprehension of bias, I want evidence to show that I have been biased in dealing with these parties in the past. Counsel must go to my judgments and show where I have been biased in favour of or against any of the parties to the two references. Over 30 years of lawyering, 15 on the bench has taught me enough to know how to do my job as the Constitution requires of me.


I have had no political affiliations or close association with any politician or a political party past or present for the last thirty plus years of my working life and I find this distasteful smear campaign in associating me with politicians as a form of character assassination. And as this issue is now being addressed in this court this smear campaign of tarnishing my name with evil connotation continues such as the full page article of this same alleged offensive publication in the Post Courier in yesterday's edition bearing in addition to the official national logo on the top, a politician's head but bearing a signature that looked like mine. Since my appointment as a judge, my name has never been so loosely politicised by politicians for their own selfish gains.


On this basis, for me to recuse as I am asked to do by the applicant to do, would amount to my submission by their definition or an admission of bias or being untruthful to one's oath to do right by all manner of persons. That submission I fear is going to be used against me for their own purposes and today's headline article of the controversial law recently passed becoming effective on the eve of this hearing is by no means accidental or coincidental. I stand by the Constitution and await what flows next.


I am not persuaded as to whose yardstick is this question of perception of bias is going to be measured? The blog owner of PNGExposed and his followers? Or the readers of the two daily newspapers, National and Post Courier, who read items published by politicians with vested interests in the on-going court proceedings? Is there no fair and uncontaminated or untainted publication to judge me?


I find no good reason to recuse and I will not recuse unless of course, if my remaining brother judges, in their combined opinion, rule that I must recuse and I will obey the court order.


___________________________________________________


______________________________


APPENDIX F


December 9, 2011 – HANSARD NOTES


MOTION BY LEAVE
Mr. BELDEN NAMAH (Vanimo-Green – Minister for Forest – I seek leave of Parliament to move a motion without notice.


Leave granted.

A STATEMENT BY THE ACTING LEADER OF GOVERNMENT BUSINESS – ACKNOWLEDGING LEADERS PRESENT IN THE CHAMBER


Mr. BELDEN NAMAH – Mr. Speaker, before I move a motion I wish to acknowledge who are present today in the chamber.


The Prime Minister, myself as the Deputy Prime Minister, the Treasurer, all the Cabinet Ministers and the Government back benchers.


Mr. Speaker, your presence today in Parliament irrespective of the Court decision that is going to be handed down today. You have demonstrated and you are continuously demonstrating to your people of this county that you are leaders that have come to the Floor of this Parliament where the decisions of our people and our beautiful country is made and how our country will lead forward to the future.


I want to acknowledge you all this morning for having that leader ship for putting our people first before yourself and coming into this Floor of Parliament because today is a Parliament session that we come to attend parliament and we are not at the Court because we are do not belong to the Court House. The Court House belongs to the lawyers.


Thank you Mr. Speaker and I shall now proceed with my motions without notice.


Mr. Speaker, on the 17th May 2011, in the May Meeting of this Parliament, the Parliament granted Leave of Absence to the Right Honourable Member for East Sepik Provincial and the Prime Minister then, Sir Michael Thomas Somare and this Leave of Absence was granted by this Parliament pursuant to Section 104 sub-section 2 (d) of the Constitution and Section 29 sub-section 1 of the Standing Orders of this Parliament.


The reason of the granting of the Leave on a motion for the Member for the East Sepik Provincial was supposedly on the found of ill health. At the material time there was no particular description of extent of Member's ill health to make a well informed decision on the motion for leave.


However, during the course of heating of the Supreme Court Constitutional Reference filed by the East Sepik Provincial Government, certain stage in revelations were made pertaining to the health of the Member are known to this Parliament and the people of PNG who have the right to know.
These include Mr. Speaker, he had an aortic valve disease for 10 to 15 years. His flying to Singapore on 29 March 2011 was due to heart failure. On the 21st of April 2011, he developed a cardiac arrest and had to be resuscitated.


Mr. Speaker, another corrective surgery was made on 11th May 2011, he developed another internal bleeding episode and was rushed to the operating theatre and the surgeon again corrected that.
Mr. Speaker, according to the conventions of the Westminster System, which this Parliament is part of, and these were more than adequate grounds for the Member to resign from Parliament but he did not.


At that material time, at no time did the Member or the NEC and its Members inform the Parliament that the Member was undergoing a life threatening open heart surgery.
Mr. Speaker, here we are not talking about the ordinary Member of Parliament or a ordinary citizen but someone who once hold the highest of the land, the highest office in the county and that is the office of the Prime Minister.


02/08
This matter is not a matter of secret to Somare family alone. Let me remind you that this matter is not a secret to Somare family alone or to the NEC alone but to the Independent State of Papua New Guinea and more that 6.7 million people of this country.


Mr. Speaker, neither a report was tabled to this Parliament nor did his constituent of East Sepik was informed of the life threatening condition prior to the granting of the leave.
However, the single judge directed by the Supreme Court on the Constitutional reference and found as a fact that the Member was at all material times physically unfit for duties and more disturbing is even when the question of leave was considered.


Mr. Speaker, if this vital information was made before this parliament then the people's House would have been well versed to make a well informed decision as to whether to Grant Leave of Absence on 17th May 2011, or otherwise to the Honourable Member, Mr. Speaker, as the true fact, have now surfaced from a proper inquiry by the Supreme Court, it can be seen that on 17th May 2011, this Parliament exercise its discretion without taking into account relevant considerations which were hidden from it nor in fact never exercised its discretion because the House was dictated to by the mover of the motion for the Leave of Absence.


Mr. Speaker, it is of paramount importance that a Member who is seeking Leave of Absence must make a full and proper disclosure of relevant material whether for or against in good faith before the parliament grants him Leave of Absence.


Mr. Speaker, this was not done in this instance of the Honourable Member for East Sepik Provincial before Leave of Absence was granted on 17th May 2011.
Mr. Speaker, therefore under Section 29 sub-section 1 of Standing Orders and Schedule 1.10 sub – section (3) of the Constitution and all other powers enabling, I move –
That the decision of this honourable Parliament made on the 17th May 2011 or otherwise including any other day in May 2011 Meeting granting of Leave of Absence to the Member for East Sepik Provincial seat Right Honourable Sir Michael Thomas Somare to be absent from Meeting of Parliament be rescinded forthwith.


Motion agreed to.


Mr. SPEAKER – Honourable since the Motion has been passed, to rescind the decision of this Honourable parliament to grant Leave of Absence to the Member for East Sepik Provincial, Honourable Sir Michael Thomas Somare for the May Meeting of Parliament, Honourable Members under Section 142 sub-section 2 (d) of the Constitution is provides a seat of a Member become vacant if he is absent without a Leave of Parliament during the whole of three (3) consecutive Meetings of Parliament unless Parliament decides to wave this Rule upon satisfactory reasons being given, since the Motion now has been passed, Rescinding the Leave granted to the Honourable Member for the East Sepik Provincial on 17th May 2011 Meeting which renders him absent for the entire May Meetings of Parliament.


Further the Honourable Member has also been absent for the entire June and August Meetings of Parliament, which means he has effectively been absent from Parliament for the whole of three (3) consecutive Meetings of Parliament.


I therefore, rule and declare that the seat of Parliament for East Sepik Provincial has become vacant.
___________________________________


387. GAVARA-NANU J: These are special References filed by the Attorney General, Dr. Allan Marat ('the Referrer'), pursuant to s19 of the Constitution. The References pose twenty nine questions.


2. These twenty nine questions arise from the following eight key questions:


i. Whether s142 (2) and Schedule 1.10 of the Constitution allow Parliament to reverse its earlier decision by a new Motion.


ii. Whether the Parliament has inherent powers outside of those powers set out in the Constitution.


iii. Whether s110 (2) of the Constitution permits the Parliament to pass legislation with retrospective effect.


iv. Whether the age restriction of 72 on a Prime Minister is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.


v. Whether the Governor - General has discretion under ss 86 and 142 (2) of the Constitution to refuse to appoint a Prime Minister in accordance with a decision of the Parliament.


vi. Whether the election of Mr. O'Neill as Prime Minister by the Parliament on 12th December, 2011, is non- justiciable either under s99 (3) or s134 of the Constitution or both.


vii. Whether the decisions made by the Governor General are non-justiciable.


viii. What constitutional powers, if any, does the Supreme Court have to make orders which affect the powers of Members of Parliament during a sitting of Parliament?


388. All these questions arise from the factual background given by the referrer in the "Special Reference" filed on 13th January, 2012. The Reference also provides the chronology of the events which gave rise to these References.


389. The background facts and events giving rise to these questions are these - The Parliament during its May, 2011, meeting passed a motion to grant leave of absence to Sir Michael for the May, 2011, meeting of the Parliament on the ground of ill health. As a result Sir Michael who was then the incumbent Prime Minister was absent for the May, 2011, meeting of the Parliament with leave of the Parliament, however, due to his continued ill health Sir Michael was also absent for the June and August, 2011, meetings of the Parliament but without leave of the Parliament. In those three months, viz. May, June and August, 2011, Sir Michael was hospitalized at the Raffles Hospital in Singapore after undergoing open heart surgery. On 2nd August, 2011, due to Sir Michael's absence from Parliament, a motion was passed by the Parliament declaring the office of the Prime Minister vacant and elected Mr. O'Neill as Prime Minister. On the same day Mr. O'Neill was sworn in by the Governor-General as Prime Minister and new Ministers including the Deputy Prime Minister, Mr. Belden Namah were appointed and sworn in by the Governor-General, the old Ministers in the previous Somare government were dismissed. Those appointments and dismissals were published in the National Gazette. In the new O'Neill government, Dr Allan Marat was appointed Attorney-General following the dismissal of the Attorney General in the previous Somare government. Subsequently, in August, 2011, the East Sepik Provincial Executive filed a Supreme Court Reference No. 3 of 2011: Re East Sepik Provincial Executive v. Hon. Dr Allan Marat [2011] PGSC 411; SC 1154, challenging the election of Mr. O'Neill as Prime Minister.


390. On 9th December, 2011, the Parliament rescinded its May, 2011, decision to grant leave to Sir Michael for the May, 2011, meeting of the Parliament. The purported effect of that rescission was that, because the Parliament had rescinded the leave it had granted to Sir Michael for the May, 2011, meeting of the Parliament, Sir Michael was now treated or deemed as having been absent for three consecutive meetings of the Parliament, viz. May, June and August, 2011 meetings without leave of the Parliament. Thus, it is the Referrer's contention that Sir Michael having been absent for those three consecutive meetings of the Parliament without leave of the Parliament, Sir Michael's East Sepik Provincial seat, had pursuant to s. 104 (2) (d) of the Constitution, become vacant, the consequence of which was that Sir Michael was also no longer the Prime Minister thus creating a vacancy in the office of the Prime Minister. Consequently, it is argued by the Referrer that on 2nd August, 2011, the Parliament pursuant to s. 142 (2) of the Constitution validly elected Mr. O'Neill as Prime Minister to fill the vacancy in the office of the Prime Minister.


391. On 9th December, 2011, the Governor-General declared the East Sepik Provincial seat vacant. On the same day, this declaration was published in the National Gazette No. G363.


392. On 12th December, 2011, the Standing Orders were suspended and a Bill being the Prime Minister & National Executive Council (Amendment) Act 2011, ("PM & NEC (Amendment) Act 2011") was passed effectively amending the Prime Minister & National Executive Act 2002. The amending legislation inter alia, provides time limit for an Acting Prime Minister to be in office. The amendments provide that, should the Prime Minister fail to resume his position within three months of the appointment of the Acting Prime Minister, a vacancy in the office of Prime Minister would occur. The amendments are made retrospective to January, 2011.


393. The Speaker of the Parliament certified the PM & NEC (Amendment) Act 2011, on 12th December, 2011.


394. On the same day, viz. 12th December, 2011, the Parliament again elected Mr. O'Neill as Prime Minister.


395. Also on 12th December, 2011, the Supreme Court handed down its decision in Special Reference By East Sepik Provincial Executive, in which the Court found that the declaration by the Parliament on 2nd August, 2011, of a vacancy in the office of the Prime Minister was invalid. The Supreme Court also found the election of Mr. O'Neill as Prime Minister on 2nd August, 2011, invalid. It is a contention by the referrer that those findings of the Court took effect from 12th December, 2011. This issue is addressed later in the judgment.


396. The Supreme Court's decision in Re East Sepik Provincial Executive was received by the Parliament on 13th December, 2011. On the same day, Sir Michael resumed office as Prime Minister and dismissed his former Ministers and appointed new Ministers who were sworn in by the Governor- General on the same day. Also on the same day the appointment of new Ministers and the dismissal of former Ministers were published in the National Gazette No. G390.


397. It is further contended by the Referrer that following the decision by the Supreme Court on 12th December, 2011, in Re East Sepik Provincial Executive, Sir Michael should have been re-appointed as Prime Minister or sworn in as Prime Minister by the Governor-General. The Referrer also contends that some of the original Ministers in the Somare government who were given Ministries in the new Somare Cabinet should have been re-appointed but were not re-appointed as Ministers by the Governor- General.


398. When swearing in Sir Michael and his Ministers, the Governor-General refused to swear in Mr. O'Neill as Prime Minister and the Ministers appointed by him. Mr. O'Neill, who by this time had the majority of the Members of Parliament on his side, used his numerical strength in the Parliament to suspend the Governor-General, through the National Executive Council, purportedly under s. 94 (1) of the Constitution and appointed the Speaker Mr. Jeffery Nape as the Acting Governor-General, purportedly under s. 95 (2) of the Constitution. The suspension of the Governor-General on 13th December, 2011, was said to be because of his failure to act in accordance with his obligations more particularly under s142 (2) of the Constitution. The Governor-General's suspension was published in the National Gazette No. G.377.


399. On 14th December, 2011, the Acting Governor-General, Mr. Jeffery Nape appointed Mr. O'Neill as the Prime Minister, purportedly under s 142 (2) of the Constitution that appointment was also purportedly made pursuant to the decision made by the Parliament on 12th December, 2011, to appoint Mr. O'Neill as Prime Minister . The appointment was published in National Gazette No. G 376 on 14th December, 2011.


400. According to the chronology of events, the Acting Governor-General, Mr. Jeffery Nape purportedly acting on and in accordance with the advice of Mr. O'Neill under s. 3 (2) of the PM& NEC Act, appointed Mr. Namah as the Deputy Prime Minister. The appointment was published in the National Gazette No. G376 on 14th December, 2011.


401. Also on 14th December, 2011, the Acting Governor-General, Mr. Jeffery Nape purportedly acting pursuant to s. 144 (4) (b) (i) of the Constitution and acting on and in accordance with the advice of the Prime Minister dismissed twenty Members of Parliament as Ministers including Sir Arnold Amet as the Minister for Justice and Attorney-General under Sir Michael's appointed Cabinet on 13th December, 2011. The dismissals were published in the National Gazette No. G376 on 14th December, 2011.


402. Also on 14th December, 2011, the Acting Governor-General, Mr. Jeffery Nape appointed 33 Ministers including Dr. Allan Marat. The appointments were purportedly made pursuant to s. 142 (2) of the Constitution. These appointments were published in the National Gazette No. G376 on 14th December, 2011.


403. Also on 14th December, 2011, Mr. O'Neill as Prime Minister pursuant to s148 of the Constitution purportedly signed the determination of Ministerial responsibilities of his Ministers. This determination was published in the National Gazette No. G 374 on 14 December, 2011.


404. On 19th December, 2011, Sir Michael Ogio wrote to the Parliament and informed Mr. O'Neill that he was recognizing him as the duly elected Prime Minister. Sir Michael Ogio reasoned that he was given a flawed legal advice by the First Legislative Counsel and the State Solicitor resulting in his earlier refusal on 13th December, 2011, to swear him (Mr. O'Neill) in as the Prime Minister.


405. On 20th December, 2011, the Parliament lifted Sir Ogio's suspension and restored him as the Governor-General.


406. On 21st December, 2011, the Parliament passed further amendments to the PM & NEC Act, effectively limiting the age of a Prime Minister to 72 and further provided for the validation of the decisions and actions of Mr. O'Neill's government from 2nd August, 2011. The amendments are PM & NEC (Amendment No.2) Act 2011.


407. Also on 21st December, 2011, the Speaker of Parliament, Mr. Jeffery Nape certified the amendments to the PM & NEC Act.


408. The foregoing presents the background facts and scenarios from which the eight key questions arise, the answers given to these questions should determine the answers to all the questions posed by the References.


409. I turn now to address each of the eight key questions in the order they are raised.


i. Whether s. 142 (2) and Schedule 1.10 of the Constitution allow Parliament to reverse an earlier decision of Parliament by a new Motion.


410. This is a general question but it is directed at the decision made by the Parliament on 9th December, 2011, to rescind the decision it made in May, 2011, to grant leave to Sir Michael for the May, 2011, meeting of the Parliament on medical grounds. In so far as the general nature of the question is concerned its answer would depend on the facts and merits of a particular case, in that regard I would decline to answer the question because if I did, I would be merely engaging in speculative discussions. However, because the question is directed at the decision the Parliament made on 9th December, 2011, to rescind the decision it made in May, 2011, to grant leave to Sir Michael for the May, 2011, meeting of the Parliament, I make two observations. Firstly, any power the Parliament might have to rescind or alter its earlier decision may be made under Schedule 1.10 (3) of the Constitution, however, there are two conditions imposed by this provision for the Parliament to exercise such power. Schedule 1.10 (3) is under the general heading – "Exercise and performance of powers and duties"- and it provides:


(3) Where a Constitutional Law confers a power to make any instrument or decision (other than a decision of a court) the power includes power exercisable in the same manner and subject to the same conditions (if any) to alter the instrument or decision (my underlining).


411. Schedule 1.10 (3) is to be read subject to Schedule 1.1: Re Delba Biri v. Bill Ginbogl Ninkama [1982] PNGLR 342. Schedule 1.1 is headed – "Application of Schedule 1", and Schedule 1.1 (1) provides:


"The rules contained in this Schedule apply, unless the contrary intention appears, in the interpretation of the Constitution and of the Organic Law" (my underlining).


412. Pursuant to Schedule 1.1, the exercise of power granted under Schedule 1.10 (3) to alter a decision as is the case here, is subject to any contrary intentions appearing in the interpretation of the Constitution and of the Organic Law and in regard to Schedule 1.10 (3), it expressly provides that the exercise of power to alter a decision is to be – "exercised in the same manner and subject to the same conditions" – as when the decision was made. Clearly the exercise of power by the Parliament on 9th December, 2011, to alter the decision it made in May, 2011, to grant leave to Sir Michael for May, 2011, meeting of the Parliament could not be made in the same manner and conditions because leave was granted under different circumstances and conditions such as the long period of time that had elapsed since May 2011, when the first decision was made and leave has already been taken and used by Sir Michael with accrued rights. The decision by the Parliament to grant leave to Sir Michael was also lawfully and properly made, therefore there were no basis for its reversal or rescission. So that only leaves the meetings of Parliament for June and August, 2011, for which Sir Michael was absent without leave of the Parliament. Plainly in such a case, Sir Michael's East Sepik Provincial seat could not become vacant under s104 (2) (d) of the Constitution simply because Sir Michael was absent without leave of Parliament for only two meetings of the Parliament. It should also be said that the power of the Parliament to alter or rescind an earlier decision under Schedule 1.10 (3) of the Constitution is not absolute or unfettered and the power should not be readily exercised as was the case here.
413. Pursuant to s99 (1) and (2) (a) of the Constitution, the Parliament being a highest public body exercising the powers, authority and jurisdiction of the people has a constitutional duty to exercise its powers in the best interest of the public and for public good. In the instant case, the rescission by the Parliament of its earlier decision which was properly and lawfully made was clearly an abuse of power by the Parliament. The Parliament quite clearly on 9th December, 2011, had acted ultra vires when it altered or rescinded its earlier decision. The decision of 9th December, 2011, is therefore unconstitutional and invalid.


414. Schedule 1.10 (3) of the Constitution is almost in similar terms as s35 of the Interpretation Act, Chapter No.2, thus cases dealing with similar statutory provisions are helpful guides to the Court in deciding the issue at hand. One such case, is Minister for Immigration and Ethnic Affairs v. Kurtovic (1990) ALR 93 at 112 Gummow J said of s. 33 (1) of the Acts Interpretation Act, 1901, (Cth)):


"In any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as substantive exercise of the power. The result is the when the decision maker attempts to resile from its earlier position, he is prevented from doing so not from any doctrine of estoppels, but because his power to do so is spent and the proposed second decision would be ultra vires" (my underlining).


415. The Parliament's second decision of 9th December, 2011, to rescind its earlier decision of May, 2011, is also critical because it can be used as a precedent by future Members of the Parliament to rescind their earlier decisions if they do not like them and without proper and valid reasons. The Parliament in this case had used its law making powers to pass laws which are unconstitutional. That is a very serious breach of the Constitution by the Parliament and is a serious abuse of power.


416. As I also said in Re East Sepik Provincial Executive, Sir Michael was granted leave for the May, 2011, meeting of the Parliament by a deliberate decision of the Parliament on medical grounds. Thus although Sir Michael was also absent for the June, and August, 2011, meetings of the Parliament without leave of the Parliament, because Sir Michael's medical condition, which was the reason why he was granted leave, was still existing in June and August, 2011, the leave should have in the interest of justice been deemed or treated as leave for those three consecutive meetings of the Parliament, so as to include the meetings for June and August, 2011, thus exempting Sir Michael from the need to comply with the requirements of s. 104 (2) (d) of the Constitution.


417. Alternatively, as I also said in Re East Sepik Provincial Executive, even if Sir Michael was absent during the whole of three consecutive meetings of the Parliament without leave of the Parliament, which was not the case, the fact that Sir Michael was still ill in August, 2011, was a satisfactory reason for the Parliament to waive the rule under s. 104 (2) (d).


418. In any case, as it was held by the Court in Re East Sepik Provincial Executive, if the Parliament was not going to use its discretion in favor of Sir Michael, the Parliament or the Speaker should have, as required under s135 of the Constitution, referred the question of whether Sir Michael had lost his seat by operation of s104 (d) to the National Court, which has the exclusive jurisdiction to decide such question.


419. This leads me to my second observation, viz. the issue raised by the question being res judicata on the basis that the same issue was raised before the Supreme Court in Re East Sepik Provincial Executive, the parties in that Reference fully and extensively litigated the issue and the Supreme Court has made a final determination of the issue. The Referrer is therefore estopped or barred by the doctrine of res judicata from raising the same issue. The decision in Re East Sepik Provincial Executive also operates as a bar to this Court from determining the same issue. It is therefore improper for the Referrer to raise the same issue in these References. This question is tied to the question of whether there was a vacancy in the office of the Prime Minister on 2nd August, 2011, which the Court declared in Re East Sepik Provincial Executive that there was no such vacancy. Pursuant to s19 (2) of the Constitution, that decision or declaration is binding on the courts including this Court and all those who were involved in that Reference including the current Referrer: Special Reference by Fly River Provincial Executive Council: Re OLLIPAC [2010] PGSC 3; SC 1057. It should be noted that the decision in Re East Sepik Provincial Executive has the same effect as a declaration: In Re Michael Thomas Somare [1981] PNGLR 265 at 276 Kearney DCJ stated the law this way:


"It is vital to note that because of the terms of the Constitution, s. 19 (2), there is no difference in nature or in legal effect between an "advisory opinion" under the Constitution, s. 19 (1), as to the validity of an existing law, and a "declaration" as to the validity of an existing law. Both involve a binding judicial declaration of the legal status of the law in question" (my underlining).


420. The effect of these and many other decisions of the Supreme Court put to rest any doubt as to the binding effect of a decision or an opinion given by the Supreme Court in a Reference made under s19 (1) of the Constitution. Thus by the express terms of s19 (2) of the Constitution every such decision or opinion of the Supreme Court is binding. To say that such a decision or opinion is not binding as argued by the Parliament is contrary to the express intention of s19 (2) of the Constitution. Such an argument runs contrary to the well established principle that a decision or an opinion of the Court in s19 References is binding. The word 'binding' in the Sub-section needs no interpretation, to me the meaning is as clear as daylight. To try and give the word a meaning that is different to its literal meaning will only lead to confusion and absurdity. To my mind, the argument by the Parliament has no merit whatsoever and I have no hesitation in rejecting it offhand.


421. The principle of res judicata has been stated both by the National and Supreme Courts in a long line of cases, but it is sufficient to respectfully adopt the succinct pronouncement of the principle by Sheehan J in Tolom Abai v. The State (1995) N1402:


"It is simple law that a claim that has been tried in a Court of Law and a decision lawfully made on it cannot be tried again in respect of the same matters. The legal term for this is res judicata which means 'the matter is decided'. That is a final judgment by a competent Court on the merits of a claim has been made and is conclusive – final – as to the rights of the parties and those claiming through them. Such a decision is a bar to any new action involving the same claim or cause of action" (my underlining.


422. Earlier, in Herman Gawi v. PNG Ready Mixed Concrete (1983) unnumbered, unreported, Bredmeyer J. stated the principle by quoting the following passage from - 'The Doctrine of Res Judicata by Spencer – Bower and Turner 1969 2nd ed p.1 as in his view stated the law clearly and succinctly:


"In English jurisprudence a res judicata, that is to say, a final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation and over the parties thereto, disposes once and for all of the matters decided, so that they cannot afterwards be raised for re-litigation between the same parties or their privies.


The effect of such a decision is twofold.


In the first place, the judicial decision estops or precludes any party to the litigation from disputing against any other party thereto in any other litigation, the correctness of the earlier decision in law and fact. The same issue cannot be raised again between them, and this principle extends to all matters of law and fact which the judgment decree or order necessarily established as the legal foundation or justification of the conclusion reached by the Court.


In the second place, by virtue of the decision the right or cause of action set up in the suit is extinguished, merging in the judgment which is pronounced. Transit in rem judicatam. The result is that no further claim may be made upon the same cause of action in any subsequent proceedings between the same parties or their privies".


423. The rule of estoppel by res judicata is a rule of evidence and is known as estoppel by record. Both these requirements are satisfied by the judgment in Re East Sepik Provincial Executive. The judgment clearly establishes estoppel by res judicata against the issue of leave granted to Sir Michael in 2011, being re-agitated and re-litigated in any way by the Referrer. Significantly the parties in these References were either parties in Re East Sepik Provincial Executive or are privies to those parties, the law forbids the privies from raising the same issue: Mark Ekepa v. William Gaupe (2004) N2694.


424. In Halsbury's Laws of Australia at paragraph [190-50] the doctrine of res judicata been given a much broader application and is stated this way:


"The doctrines of res judicata and issue estoppel have been extended to apply to matters which were not raised in the prior proceedings but which could and should have been raised ...The principle is based on the policy that parties to proceeding should bring forward their whole case and not seek to reopen issues in subsequent litigation, not only to avoid the possibility of inconsistent decisions but also to make efficient use of court resources and judicial time" (my underlining).


425. The doctrine of res judicata has, pursuant to Schedule 2. 8 (1) d) of the Constitution, been adopted as part of the underlying law and the Court has a duty under s5 of the Underlying Law Act 2000, to apply the principles of the doctrine of res judicata in a coherent and consistent manner and in ways that are appropriate and conducive to the overall development of the law in Papua New Guinea. The Referrer here has ignored that fundamental principle of res judicata by raising the same issue before the Court.


426. In the result, I find that s104 (2) and Schedule 1.10 (3) of the Constitution or any other provisions of the Constitution for that matter, do not allow the Parliament to alter or vary and earlier decision of the Parliament.


ii. Whether the Parliament has inherent powers outside of those powers set out in the Constitution.


427. This is a general question but it is raised in the context of Mr. Peter O'Neill's election as Prime Minister by the Parliament. The Constitution defines and grants Parliament's powers and functions. The scheme of the Constitution makes the Constitution supreme over all three arms of the government, and it does this by expressly making the three arms of the government subject to it (s.99 (1)): Re Sitting Days of the Parliament and Regulatory Powers of Parliament (2002) SC 722; Application by Gabriel Dusava (1998) SC 581 and In the Matter Pursuant to s. 18 (1) of the Constitution, Southern Highlands Provincial Government v. Sir Michael T. Somare; Sir Matiabe Yuwi v. Sir Michael T. Somare (2007) SC 854. The Constitution being autochthonous and home grown makes it unique and rare, it is the embodiment of the will of the people to whom all power belong. Thus the authority of the Constitution is original and it does not derive from any other source: The State v. Mogo Wonom [1975] PNGLR 311 and Sir Julius Chan v The Ombudsman Commission of Papua New Guinea (1998) SC 557.


428. As the elective legislature the core function of the Parliament is to make laws and its power to make laws is unlimited and pursuant to s99 (2) (a) of the Constitution the Parliament is the supreme law making body. However, the exercise of this power is also expressly made subject to the Constitution (ss 99 (1) and (2) (a) and 100 (1): Minister for Lands v. Frame [1980] PNGLR 438. Pursuant to s 99 (2) (c) the National and Supreme Courts have unlimited jurisdiction and s99 (3) expressly provides that the respective powers of the three arms of the government are to be kept separate from each other, this gives each arm of the government constitutional independence from each other. The Constitution therefore not only provides for the separation of powers between the three arms of the government but it also ensures by the separation of their powers that the doctrine of separation of powers is maintained and not abused by the three arms of the government.


429. It is important to note that the supremacy of the Parliament only relates to its power to make laws. That correlates with the notion that all laws passed by the Parliament will remain binding unless they are either repealed or are declared invalid by the courts. The Parliament's unlimited power of law making under s99 (2) (a) is to be contrasted with the unlimited jurisdiction of the National and Supreme Courts expressed in s99 (2) (c). I consider the inherent powers of the two courts which are expressly stated under s155 (2), (3) (a), (4) and (5) is tied to the unlimited jurisdiction of the two courts, to empower the two courts to interpret laws including the Constitution and to review actions and conduct of the three arms of the government. The courts in the exercise their unlimited jurisdiction also have the duty to defend and enforce the Constitution. Thus, it is the constitutional duty of the two courts to guard and defend the Constitution. They are the guardian of the Constitution.


430. The Constitution expressly declares itself the supreme law (ss 9, 10 and 11) over any other law including Organic Laws. Thus, any law that is inconsistent with the Constitution is invalid and ineffective. This is because the Constitution is supreme law: Minister for Lands v Frame (supra).


431. The Parliament has no express inherent powers under the Constitution. Thus in regard to the election of Mr. O'Neill as Prime Minister, the Parliament was required to make the appointment in accordance with s142 (2) of the Constitution. The appointment also had to comply with the mandatory requirements of s142 (3) and (4): Reference by East Sepik Provincial Executive v. Hon. Dr Allan Marat (supra); Haiveta v. Wingti (No. 3) [1994] PNGLR 197 and Ref. No. 1 of 1997 by Principal Legal Adviser [1998] PNGLR 453.


iii. Whether s110 (2) of the Constitution does permit the Parliament to pass legislation with retrospective effect.


432. This question relates to the passing of the PM & NEC (Amendment) Act 2011,, which inter alia sets a time limit for the duration of the appointment of an Acting Prime Minister. There is no dispute that s110 (2) of the Constitution does permit the Parliament to pass legislations with retrospective effect, but whether a particular legislation can be validly made retrospective would depend on various factors, including the purpose and object of such legislation.


433. But this question raises a specific constitutional issue relating to the appointment of an Acting Prime Minister and the duration of such appointment under s. 143 of the Constitution. Section 143 sets no time limit on the duration of an Acting Prime Minister. The only form of time limit imposed under the section is subsection (2) (a), which provides that the Acting Prime Minister may remain in office until he is appointed Prime Minister in accordance with s142 of the Constitution. It is important to note that under s143 (2) (b), the Acting Prime Minister, is empowered to exercise all powers, functions and duties and responsibilities of the Prime Minister. In my opinion this process is meant to give confidence to the public and to reassure it that its affairs are being fully looked after and attended to by the Acting Prime Minister. This process is also meant to dispel any sense or feeling of insecurity in the public that the government is not in control of its affairs.


434. Section 143 allows for the Acting Prime Minister to remain in office as long as the grounds and reasons for his appointment exist. Thus, to the extent that PM & NEC (Amendment) Act 2011, imposes a time limit on the duration of the appointment of an Acting Prime Minister, the new law contravenes s143, it is therefore in breach of the Constitution and is invalid.


435. The new amendment to PM & NEC Act 2002, is also unconstitutional because it provides that the Prime Minister will also cease to hold office on the expiration of three months after the appointment of an Acting Prime Minister. The Prime Minister can only be validly removed from office on the grounds expressly set out in the Constitution. Furthermore, the National Court has exclusive jurisdiction to determine any issue as to whether a seat of a Member has become vacant. Thus, any declaration by the Speaker or the Parliament that a Member has lost his seat for being absent during the whole of three consecutive meetings of the Parliament under s104 (2) (d) of the Constitution without such question being determined by the National Court, would be unconstitutional and invalid: Re East Sepik Provincial Executive (supra).


iv. Whether the age restriction of 72 on a Prime Minister is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.


436. This question relates to PM & NEC (Amendment No.2) Act 2011, which restricts the age of a Prime Minister to 72. The question is really concerned with the right of a person to hold the office of the Prime Minister at the age of 72 years. That in my view is the real issue. The issue is not whether it is reasonably justifiable for a person to hold the office of Prime Minister at the age of 72 years in a democratic society. The question appears to be based on ss 38, 39, 40, 41 and 50 (2) of the Constitution. The question is in my view based on the misapprehension of these provisions. It should be noted that these provisions relate to regulating and restricting rights for the purposes of protecting and giving effect to public interest and public good. The right of a person to hold office of the Prime Minister at the age of 72 or even beyond is given by s50 of the Constitution and pursuant to s50 (1) (d) and (e) every citizen who is "of full capacity" and who has reached the "voting age" has the right – "to vote for and to be elected to, elective public office at genuine, periodic free elections; and to hold public office and to exercise public functions". Section 50 (d) and (e) are to be read together with ss103 (3), 126 (3) and Schedule 1.2 of the Constitution. In Schedule 1.2 the phrase "of full capacity" is defined as meaning that – "a person is not of unsound mind within the meaning of any law relating to the custody of protection of the persons or property of persons of unsound mind". The phrase "person of unsound mind" has been judicially defined in Re: East Sepik Provincial Executive, there the Supreme Court held that the meaning of the phrase is to be found in s. 81 of the Public Health Act, Chapter No. 226. In Re East Sepik Provincial Executive, the Court had to give meaning to the phrase in the context of s. 103 (3) (b) of the Constitution. I see no reason to depart from the definition given to the phrase in Re: Re East Sepik Provincial Executive. As to the phrase "voting age" in s. 50 (1), it is in reference to s126 (3) of the Constitution which fixes the minimum voting age at 18 years. Section 103 on the other hand provides that a Member of Parliament must not be less than 25 years of age. This means every person aged 18 to 24 years can vote but cannot stand for elections but a person aged 25 years and above is eligible to vote and to stand for elections to become a Member of Parliament so long as he is a person of full capacity. These are the only restrictions to a person from becoming a Member of Parliament. It is clear from this that s50 is designed to be self regulating and it does not need the aid of another law to regulate it. This not only makes PM & NEC (Amendment No.2), 2011, unconstitutional and invalid but it is also unnecessary and inappropriate.


437. Section141 (a) of the Constitution provides that every Member of Parliament is eligible to hold a Ministry, including the Prime Minister. This right is available to every citizen who is of full capacity. When one looks at the combined effect of ss50 and 141 (a), it becomes clear that the new amendment unnecessarily interferes with and denies the person's right under these provisions. The new amendment on one hand allows for the person to be a Member of Parliament as being a person of full capacity but at the same time restricts or prohibits the person from becoming a Prime Minister although he is a person of full capacity. Under s50 a person or a citizen who is of full capacity is not only eligible to become a Member of Parliament and become a Minister but he is also eligible to become the Prime Minister. In that regard the new amendment fails to address the issue of the person being of full capacity which is the threshold issue under s 50. It is therefore clearly inconsistent with s 50 and is invalid and ineffective.


438. In my view, the PM & NEC (Amendment No.2) Act 2011, is also discriminatory because it denies a person from holding the office of Prime Minister purely on the basis of his age. This is another way new amendments are being used by the Parliament to deny a person who is of full capacity from exercising his right under s50 to hold the office of the Prime Minister: Special Reference by Fly River Provincial Executive, re Organic Law on Integrity of Political Parties and Candidates (OLIPPAC) (supra).


439. I propose to address questions (v), (vi) and (vii) together in brief, for they all relate to the appointment of Mr. O'Neill as Prime Minister by the Parliament and the actions or decisions taken or made by the Governor General in relating to such appointment. The questions are as follows:-


v. Whether the Governor General has discretion under ss. 86 and 142 (2) of the Constitution to refuse to appoint a Prime Minister in accordance with a decision of the Parliament.


vi. Whether the election of Mr. O'Neill as Prime Minister by the Parliament on 12 December, 2011, is non-justiciable either under s. 99 (3) or 134 of the Constitution or both.


vii. Whether the decisions made by the Governor-General are non-justiciable.


440. Question (v) is raised in the context of Mr. O'Neill's appointment as Prime Minister by the Parliament on 12th December, 2011, and the advice given to the Governor-General by the Parliament in regard to that appointment. I have a firm view that the Governor-General has discretion to decide whether to appoint a Prime Minister upon the advice of the Parliament for the reason that his decisions are amenable to review by the Court, this includes any advice given to him by any person or authority if such person or authority had acted ultra vires in giving such advice. In this case if the Parliament had, in advising the Governor-General acted outside of its powers, its actions or conduct would be subject to review by the Court. In such a case, the Parliament's conduct would be justiciable and the Parliament cannot raise ss. 99 (3) and 134 of the Constitution in defence of its conduct. Any advice given to the Governor-General is non-justiciable under s86 (4) of the Constitution, as long as the person or authority giving such advice had acted within the powers given to it by law: Kila Wari and Others v. Gabriel Ramoi and Sir Kingsford Dibela [1986] PNGLR 112. Likewise, any decision made by the Governor-General is amenable to review by the Court, if the decision is unconstitutional or unlawful: Burns Philp (PNG) Ltd v. Independent State of Papua New Guinea (1989) N769.


441. The election of Mr. O'Neill as Prime Minister on 12th December, 2012, under the relevant provisions of the Constitution including s142 (2) is justiciable, it is amenable to review by the Court if the Parliament had acted in breach of the Constitution: Haiveta v. Wingti (No. 3) (supra); Re: Sittings Days of Parliament and Regulatory Powers of Parliament (2002) SC 722; East Sepik Provincial Executive (supra) and James Mopio v. Speaker of the National Parliament [1977] PNGLR 420.


442. The election of Mr. O'Neill as Prime Minister on 2nd August, 2011, has been declared unconstitutional and invalid by the Court in Re East Sepik Provincial Executive on the ground that there was no vacancy in the office of the Prime Minister. That decision as I have alluded to earlier is binding on this Court. The amendments to the PM & NEC Act 2002, having been found to be unconstitutional and invalid, the subsequent election of Mr. O'Neill as Prime Minister on 12th December 2011, is also unconstitutional and invalid. Re: East Sepik Provincial Executive (supra).


viii. What constitutional powers, if any, does the Supreme Court have to make orders which affect the powers of Members of Parliament during a sitting of Parliament?


443. This question is raised in the context of ss 99 (3) viz. separation of powers between the three arms of the government and non- justiciability or otherwise of proceedings in the Parliament and its Committees. The Supreme Court by virtue of its unlimited jurisdiction and the inherent powers given to it under s155 of the Constitution and as the guardian of the Constitution has wider powers to review any conduct of the Parliament, where such conduct is unconstitutional or where the Parliament has acted beyond the powers given to it by the Constitution. Section 99 (3) would not detract from the power of the Supreme Court in such situations: Haiveta v. Wingti (No. 3) (supra); Re: Sittings Days of Parliament and Regulatory Powers of Parliament (supra) and Re East Sepik Provincial Executive (supra).


444. The combined effect of the above findings is that Sir Michael remains the Member for East Sepik and is still the legitimate Prime Minister of Papua New Guinea. For avoidance of any doubt, it should be stated that there has never been a vacancy in the office of the Prime Minister and as such Sir Michael has always been the Prime Minister and he is still the legitimate Prime Minister.


445. For this reason I find that there was no need for Sir Michael to be sworn in as Prime Minister on 12th December, 2011, when this Court in Re East Sepik Provincial Executive declared him as the legitimate Prime Minister.


446. Also for the reasons given, it should also be stated that Mr. Sam Abal was the Acting Prime Minister up to 12th December, 2012, when the Supreme Court in Re East Sepik Provincial Executive declared Sir Michael as the legitimate Prime Minister.


447. It is important to note that the views I have expressed in the judgment only relate to or cover the positions of Prime Minister and the Deputy Prime Minister. I have not said anything about the legitimacy of the current government. In regard to the position of Prime Minister, I have said that Sir Michael is and has always been the legitimate Prime Minister. What then is the position of Mr. O'Neill whose appointment has been declared unconstitutional and invalid but is the actual holder of the office of the Prime Minister? I have a firm view that Mr. O'Neill's position is that he is a de facto Prime Minister which means, he is the one who is actually holding the office of Prime Minister and performing the powers, functions and responsibilities of the Prime Minister although his appointment as Prime Minister was and is unconstitutional and invalid. For that same reason, the O'Neill government is also a de facto government. The Latin term 'de facto' is given various legal definitions such as – "in fact"; "actual"; "existing in fact"; "illegitimate but in effect"; "existing as a matter of fact rather than of right". And a 'de facto government' is defined by Black's Law Dictionary as – "A government that has taken over the regular government and exercises authority". Surely, if Mr. O'Neill's appointment as Prime Minister was unconstitutional and invalid then it must follow that his government is also unconstitutional and invalid because he is the one who allocated Ministries to the Ministers in the executive government under s141 of the Constitution. The next pertinent question is how does this affect the actions and or decisions taken and made by the O'Neill government? In my view it is sufficient to state that such actions and or decisions are safeguarded and preserved by the Constitution under s153 (4), which provides:


153 Validity of executive acts


(4) No act of a Minister is open to challenge on the ground that he was not empowered to perform the act, if some other Minister, or any Minister, was so empowered.


448. The effect of s153 (4) is that all actions and decisions taken and made by the O'Neill government, including those taken and made by Mr. O'Neill personally, among which is the appointment of the care taker Cabinet, for purposes of the 2012 general elections cannot be challenged on the ground that another Minister (or Prime Minister) should have performed such task. This view is consistent with the notion that there should always be a government to run the affairs of the nation or the people who in Papua New Guinea are the depository of all powers. Section 153 (4) is in my opinion designed to safeguard and give effect to this notion.


449. I also note two important factors which in my respectful opinion lend support to the view I have expressed. Firstly, there is an Opposition in the Parliament led by Dame Carol Kidu and Mr. Sam Abal; both were Ministers in the Somare government, Mr. Abal was the Deputy Prime Minister. By forming the Opposition they have given the O'Neill led government a de facto legitimacy. Secondly, and perhaps more significantly, the Court is now dealing with the Reference filed by Dr Allan Marat, the current Attorney General in the O'Neill government, former Attorney General in the Somare government, Sir Arnold Amet is now a member of the Opposition. This is another factor which has given de facto legitimacy to the O'Neill government.


450. The fact that Dr Allan Marat has filed this Reference under s19 (3) in his capacity as the Attorney General is not a matter which the Court can ignore or be oblivious to.


451. The intention of s153 (4) is to ensure that there is continuity in how the country is run, and that bona fide work of the Ministers even under a de facto government do not go to waste simply because another person or Minister should have done the work. In my opinion, it is for this same reason that the Constitution does not impose a time limit on the duration of the Acting Prime Minister. The Constitution also expressly states that the Acting Prime Minister will perform powers, functions and responsibilities of the Prime Minister, this is so that the people's affairs continue to be effectively attended to.


452. What effect does my decision have on Sir Michael? Firstly, the decision affirms that Sir Michael is the Member for East Sepik. Secondly, Sir Michael is still the legitimate Prime Minister until such time the new Prime Minister is appointed after the general elections under s142 (2) of the Constitution. Thirdly, Sir Michael is entitled to all the benefits of the Prime Minister until such time the Parliament elects the new Prime Minister as required under s142 (2) of the Constitution.


453. I consider that the views I have expressed here are relevant to the issues at hand. They are pertinent issues which have to be addressed by the Court. The Court has the unlimited jurisdiction prescribed under s99 (2) (c) of the Constitution which empowers it to express these views. In this regard I find support in the statement of the law expressed by Kearney DCJ in Avia Aihi v. The State [1981] PNGLR 81, where his Honour at 92 and 93 said:


"No distinction is to be drawn in my opinion, as regards the Constitution, s. 155 (2) (b) between the concepts of 'jurisdiction' and 'power'. In normal language usage, 'jurisdiction' connotes the authority of a court to exercise judicial power in a specific case; while 'judicial power' is the totality of the powers of a court when it embarks upon the hearing of a case within its jurisdiction".


454. I consider that an advisory opinion under s19 (1) of the Constitution which has a binding effect is part and parcel of Court's constitutional function to administer justice, I am therefore not restrained or prohibited from expressing the opinions I have just expressed.


455. My answers to the twenty nine questions are as follows:


1. Does Schedule 1.10 of the Constitution allow Parliament to reverse an earlier decision of Parliament by a new Motion?


Answer: It depends on the type of decision to be reversed, the timing of reverse and the reason for its reverse. Question is otherwise vague.


2. Does any other section or Schedule allow Parliament to reverse an earlier decision of Parliament by a new motion?


Answer: No.


3. If the answer to either question (1) or question (2) is yes, can Parliament reverse a decision to grant leave for a Member to be vacant?


Answer: If the word "vacant" is meant to be "absent", although none of the answers to questions (1) and (2) is yes, I say yes to this question, if that is the fair and just thing to do. The question nonetheless is speculative.


4. If the answer to question (3) is yes, was the decision of Parliament to rescind the leave given to Sir Michael Somare for the May sittings valid?


Answer: No.


5. If a Member of Parliament has been absent without leave of the Parliament during the whole of three consecutive sessions of Parliament, does the seat of such Member become vacant by operation of law in s104 (2)?


Answer: Yes, but subject to the exclusive jurisdiction of the National Court under s135 of the Constitution to determine any question arising as to whether the seat has become vacant.


6. If answer to question 5 is no, when did Sir Michael Somare cease to be a Member of Parliament on 9th December, 2011?


Answer: This question is mischievous because the issue raised by the question is res judicata, in that this is the same issue which the Supreme Court has determined in Re East Sepik Provincial Executive (supra) in which the Court in its binding decision determined that Sir Michael has not lost his seat. The question is unnecessary.


7. If the answer to question 5 is no, when did Sir Michael cease to be a Member of Parliament?


Answer: Same as the answer given to question 6.


8. Does Parliament have inherent powers outside of those set out in the Constitution?


Answer: This question is based on the false assertion that Parliament has inherent powers under the Constitution because unlike the National and Supreme Courts it has no express inherent powers under the Constitution and it has no inherent powers outside the powers given to it by the Constitution.


9. If answer to question 8 is yes, what inherent powers?


Answer: Unnecessary to answer.


10. If answer to question 8 is yes, does Parliament have inherent powers to elect a Prime Minister when the incumbent Prime Minister has abandoned his seat?


Answer: Unnecessary to answer.


11. Does s110 (2) of the Constitution permit the making by Parliament of legislation with retrospective effect?


Answer: Yes, subject to the Constitution.


12. If the answer to question 11 is no, then does any other provision of the Constitution allow Parliament to make retrospective legislation?


Answer: Unnecessary to answer.


13. If the answer to question 12 is no, then does Parliament have inherent powers to make retrospective legislation?


Answer: Unnecessary to answer.


14. Does s143 of the Constitution allow for an Act of Parliament to make retrospective legislation?


Answer: No.


15. If answer to question 14 is yes, then did Sam Abal cease to be Acting Prime Minister on the expiry of three months from his date of appointment as Acting Prime Minister?


Answer: Unnecessary to answer.


16. If the answer to question 15 is yes, did Sir Michael cease to be Prime Minister on the expiration of three months after the appointment of Sam Abal as Acting Prime Minister when Sir Michael failed to return to Papua New Guinea and resume the office and duties of Prime Minister?


Answer: Unnecessary to answer.


17. Is the age restriction of 72 on a Prime Minister reasonably justifiable in a democratic society having a proper regard for the right and dignity of mankind?


Answer: No, such restriction is in breach of the relevant provisions of the Constitution, including s 50 (1) (e) and s141 (a).


18. If the answer to question 17 is yes, is the age restriction constitutionally valid pursuant to s 38 of the Constitution?


Answer: Unnecessary to answer. However s 38 has no relevance and application to age restriction because such restriction is not for purposes of giving effect to public interest.


19. Does the Governor-General have any discretion under s 142 (2) of the Constitution to refuse to appoint a Prime Minister in accordance with a decision of Parliament?


Answer: Yes, if the Governor-General is of the view that the decision of the Parliament is unconstitutional or unlawful.


20. Does the Governor-General have any reserve powers under the Constitution in s 86 or at all to refuse to appoint a Prime Minister in accordance with the decision of the Parliament?


Answer: Same as the answer to question 19.


21. Did the Governor-General have any powers or discretion to refuse to appoint Peter O'Neill on the 13th December, 2011, as Prime Minister?


Answer: Yes, because the Governor General is independent of the Parliament and is bound by the Constitution. He had discretion to refuse if he was of the view that such appointment was unconstitutional.


22. Is the election of Peter O'Neill as Prime Minister by the Parliament on 12th December, 2011, non-justiciable:


(a) By virtue of s 99 (3) of the Constitution, or

(b) By virtue of s134 of the Constitution, or

(c) By virtue of s 99 (3) and s134 when read together?


Answer: No.


23. If the election of the Peter O'Neill on 12th December, 2011, is justiciable, was the election validly done in accordance with s142 of the Constitution?


Answer: No.


24. Are decisions by the Head of State non-justiciable under the constitutional laws of Papua New Guinea?


Answer: No.


25. Is the appointment of Peter O'Neill by the Governor General pursuant to s142 (2) of the Constitution justiciable?


Answer: Yes.


26. What constitutional powers does the Supreme Court have to make orders which affect the powers of Members in Parliament during a sitting of Parliament?


Answer: The Supreme Court has all powers under the Constitution, including s 99 (2) (c) and s155 of the Constitution and as the defender of the Constitution to require compliance of constitutional laws by the Parliament.


27. Does the Doctrine of Separation of powers as entrenched in the Constitution in s99 (3) preclude the Supreme Court from Making Orders which affect the inner workings of Parliament?


Answer: The inner workings of the Parliament are non-justiciable subject to the Constitution.


28. Does s134 of the Constitution prevent the Supreme Court from making Orders which dictate the carrying out of a procedure of Parliament?


Answer: No.


29. Does s 99 (3) and or s134 of the Constitution prevent the Supreme Court from ordering the Parliament to reinstate Sir Michael Somare as Prime Minister?


Answer: No, in any case Sir Michael had never ceased to hold the office of the Prime Minister.


456. The views and answers I have expressed in the judgment should answer all questions raised in the two References.


DECLARATIONS AND ORDERS OF THE COURT


AMENDED DECLARATIONS & ORDERS


The Court declares/Orders that:-


(1) The Supreme Court's judgment and orders given under s 19 of the Constitution, on 12th December 2011, in SCR No 3 of 2011 Reference by East Sepik Provincial Executive (2011) SC1154, that Sir Michael Somare is the legitimate Prime Minister and the appointment of Peter O'Neill as Prime Minister is unconstitutional and invalid, is confirmed.

(2) Parliament's decision made on 9th December 2011 to rescind leave of absence granted to Sir Michael Somare for the May 2011 meeting is inconsistent with s 50 of the Constitution and s 11, s 19, s 155 (6) and s157 of the Constitution; and therefore declared unconstitutional, invalid and of no effect.

(3) The Prime Minister and National Executive Council (Amendment) Act 2011 passed by the Parliament on 21st December 2011 and certified by the Speaker is inconsistent with s 38 and s 50 of the Constitution and declared unconstitutional, invalid and of no effect.

(4) The Prime Minister and National Executive Council (Amendment No 2 ) Act 2011 passed by the Parliament on 12th December 2012 and certified by the Speaker is inconsistent with s 11, s 19, s 38, s 50, s 155 (6) and s 157 of the Constitution and therefore declared unconstitutional, invalid and of no effect.

(5) The election of Peter O'Neill as Prime Minister on 12th December 2011 and his subsequent confirmation by the Speaker of Parliament the Hon Jeffrey Nape, in his capacity as Acting Governor-General, on 14th December 2011 are inconsistent with s 142 (1) and (2) of the Constitution as interpreted and applied in SCR No 3 of 2011 Reference by East Sepik Provincial Executive (2011) SC1154, and therefore, declared unconstitutional, invalid and of no effect.

(6) That at all material times, Sir Michael Somare was and is the member for the East Sepik Provincial seat; and, the legitimate Prime Minister of Papua New Guinea until the writs for the 2012 National elections are returned and a new Prime Minister is elected in the first sitting of the next Parliament pursuant to s 142 of the Constitution.

(7) That Prime Minister Sir Michael Somare shall be accorded full privileges and benefits as Prime Minister and member of Parliament for East Sepik Provincial seat, effective from 2nd August 2011.

(8) Pursuant to s 153 (4) of the Constitution, and subject to the Constitution generally, the bona fide decisions and actions made and implemented by the de facto government of Peter O'Neill as Prime Minister and any of those of ministers appointed by him, between 2nd August 2011 and 20th May 2012, are not open to challenge.

(9) Pursuant to s 11, s19 (2), and s155 (6) of the Constitution, it is the duty of all persons, including the Governor- General, and the Speaker of Parliament and all other members of the executive government officers, bodies and agencies, are under a duty, so far as within their respective lawful powers; to give full effect to and comply with the binding opinions and orders issued by this Court in SCR No 1 and 2 of 2012.

(10) Costs is reserved to be considered with costs reserved in SCR No 3 of 2011.

DATED this 21 day of May 2012
AMENDED this 23rd day of May 2012


BY THE COURT:


Injia, CJ Kirriwom J Gavara-Nanu J


_________________________________________________________________


Twivey Lawyers: Lawyer for Dr Allan Marat (Referrer)
Warner Shand Lawyers: Lawyer for Parliament (Referrer)
Warner Shand Lawyers: Lawyer for Peter O'Neill (Intervener)
Kelly Naru Lawyers: Lawyer for Marus (Intervener)
Young & Williams Lawyers: Lawyer for Belden Namah (Intervener)
Henaos Lawyers: Lawyer for Sam Basil and Jamie Maxtone-Graham (Intervener)
Steeles Lawyers: Lawyer for East Sepik Provincial Executive (Intervener)
Posman Kua Lawyers: Lawyer for the Sir Michael Somare (Intervener)
Posman Kua Lawyers: Lawyer for Sir Arnold Amet (Intervener)


[1] It needs to be noted that 9th December, 2011 was the original date fixed for the Supreme Court to hand down its decision in SCR 3 of 2011 which the O’Neill/Namah government awaited to make its next move but the decision was deferred to Monday 12 December, 2011.

[2] See SC1154 in PacLii

[3] Annexure “B” in Sir Michael Somare’s affidavit sworn 15th February, 2012 and filed in SCR 2 of 2012.
[4] On 13 December 2011, following the Order by the Supreme Court to restore Sir Michael Somare as Prime Minister effective on 12 December 2011 and on the advice of the Acting State Solicitor, the Governor General dismissed 10 Ministers from the original Somare government. This was published in the National Gazette no G390 on the same day being 13 December 2011.


[5] Also on 13 December 2011, Sir Michael Somare as Prime Minister determined Ministerial Responsibilities for his original Ministers which also included Sir Arnold Amet’s determination as Minister for Justice and Attorney General. This was despite the fact that the original Somare Ministers had not been re-appointed by the Governor General. These Members were given Ministerial portfolios by Sir Michael Somare but they were not actually appointed Ministers by the Governor General at that time. The portfolio determinations were also published in the National Gazette No. G 390 on the same day being 13 December 2011. Note National Gazette No. G390 was wrongly numbered so in National Gazette No. 372 – the mistake was corrected and G390 was renumbered to G371).

[6] See Appendix B

[7] Section 135 Constitution and decision of SCR 3 of 2011

[8] Classical example is the case of Reference under s.19 of the Constitution and Special Reference by Morobe Provincial Executive re re-Election of Governor General Sir Paulias Matane for Second Term [2010] SC 1085

[9] Description given to the Parliament in the Republic of Namibia where the Parliament sought to review a decision of the Supreme Court that it was unhappy with. See

[10] Section 135 Constitution

[11] See s. 155(6) Constitution. See also Yap v Tan & Ors [1987] PNGLR 227; Niugini-Lloyds International Bank v Bernard Sakora [1987] PNGLR 275; re Yabo Sabo [1995] PNGLR 13; Kimbe Bakery v Jalatang [1993] N1274; Pius Mark v Korali Iki [1995] PNGLR 116; Concord Pacific Ltd v Thomas Nen[2000] PNGLR 47; Soso Tomu v Independent State of PNG [2002] N2190; Peter Luga v Richard Sikani, Commissioner for CS [2002] N2285 and Ome Ome Forests Ltd v Ray Cheong [2002] N2289

[12] See Court Order in SCR 3 of 2011

[13] However, it must be noted that following the Supreme Court decision in SCR 3 of 2012 on 12 December, 2011 and acting on advice from the State Solicitor, the Governor General Sir Michael Ogio refused to recognise Peter O’Neill as the validly elected Prime Minister on 14 December, 2011 resulting in the suspension of the Governor General by the Parliament. Refer to statement of facts in paras (l) – (z).

[14] See SC1154

[15] See Draft Hansards Friday 9th December, 2011.

[16] Section 50 reads:” Special Rights of Citizens.

50. Right to vote and stand for public office.

(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—

(a) is under sentence of death or imprisonment for a period of more than nine months; or

(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph,

has the right, and shall be given a reasonable opportunity—

(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e) to hold public office and to exercise public functions.

(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.”

[17] Note that as per paragraphs (s), (t), (u), (v) and (w) of the facts recitals relied on by the referrer in SCR 1 of 2012 following the election by Parliament of Peter O’Neill as the Prime Minister, the Governor General Sir Michael Ogio, refused to recognize the appointment and therefore refused to swear in Peter O’Neill as the Prime Minister. As the consequence the Parliament suspended Sir Michael Ogio as the Governor General and elected the Speaker Jeffery Nape as the Acting Governor General who then performed the vice regal role and executed the instruments recognising Peter O’Neill as the Prime Minister and Belden Namah as the Deputy Prime Minister respectively.

[18] See SC1154

[19] Constitutional Supremacy or Parliamentary sovereignty: Through the back door; Francis X Bangamwabo - SALii

[20] Lord Acton, in a letter to Bishop Mandell Creighton, 1887.

[21] Constitution of the Republic of Namibia - SAFLii

[22] Constitutional supremacy or parliamentary sovereignty: Through the back door- Francois X Bangamwabo

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