Somare v Nape [2012] PGSC 21; SC1175 (4 April 2012)

SC1175

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC (OS) 3 OF 2012

BETWEEN:

HONOURABLE SIR MICHAEL SOMARE, MP
First Applicant

AND:

HONOURABLE SIR ARNOLD AMET
Second Applicant

AND:

HONOURABLE JEFFREY NAPE, MP
First Respondent

AND:

HONOURABLE DR. ALLAN MARAT, DE FACTO ATTORNEY-GENERAL AND MEMBER FOR RABAUL
Second Respondent

AND:

HONOURABLE PETER O'NEILL, MP
Third Respondent

AND:

MEMBERS OF THE NATIONAL EXECUTIVE COUNCIL
Fourth Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Hartshorn J
2012: 4th April

EXTEMPORE DECISION

Application for interim injunctive relief – members of Parliament – Section 115 (3) Constitution considered

Facts:

The applicants by Originating Summons apply under s. 18 (1) Constitution for a declaration that the Judicial Conduct Act 2012 is unconstitutional, null and void and of no legal effect, on various grounds. A permanent injunction is also sought, together with consequential relief. The applicants now apply for an interim injunction that the respondents be restrained from initiating, implementing or taking any steps under the Judicial Conduct Act or to cease the continuation of any such action.

Held:

1. The Supreme Court has not determined whether the Judicial Conduct Act is unconstitutional. The Act is not unconstitutional until the court so determines.

2. To restrain the 1st to 4th respondents, who are members of Parliament, from taking any steps available to the Parliament under the Judicial Conduct Act, would affect their ability to perform as members of Parliament, contrary to s. 115 (3) Constitution.

3. The respondents' submissions are correct. This court does not have the jurisdiction to grant the interim relief sought by the applicants. The relief sought in the application of the applicants is refused.

Cases cited:

Mauga Logging Co Pty Ltd v South Pacific Oil Palm Development Pty Ltd (No. 1) [1977] PNGLR 80
Haiveta v Wingti (No 3) [1994] PNGLR 197
Golobadana No 35 Ltd v Bank of South Pacific Ltd (2002) N2309
Special Reference by Fly River Provincial Executive Council; Re-Organic Law on Integrity of Political Parties and Candidates (2010) SC1057

Counsel:

Mr. K. Kua and Mr. C. Posman, for the Applicants
Ms. T. Twivey, for the First and Second Respondents
Mr. M. Wilson, for the Third Respondent
Mr. L. Henao, for the Fifth Respondent

4th April, 2012

1. HARTSHORN, J: The applicants by Originating Summons apply under s. 18 (1) Constitution for a declaration that the Judicial Conduct Act 2012 is unconstitutional, null and void and of no legal effect, on various grounds. A permanent injunction is also sought, together with consequential relief.

2. The applicants now apply for an interim injunction that the respondents be restrained from initiating, implementing or taking any steps under the Judicial Conduct Act or to cease the continuation of any such action. Further, any step or decision that may have already been taken under the Act, the applicants seek that it be stayed.

3. The applicants initially sought to have the application for injunctive relief heard ex parte. I directed that the application was to be served on all parties. As the application was urgent and given the subject matter, I directed that apart from the first respondent, the State, service on the other parties was to be on their lawyers. This was because these parties, apart from the State, counsel for the applicants informed, are parties in the Supreme Court References presently being heard in another Supreme Court. I have since been informed that the first respondent is not a party to those References. Again, because of the urgency and the subject matter, I directed that this application be heard tonight.

4. At the outset, I requested counsel to address this court as to its jurisdiction to grant the interim relief sought, especially with reference to s.115 Constitution. Sections 115 (2) and (3) are as follows:

"(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)."

5. Counsel for the applicants submitted that this court has the jurisdiction pursuant to Order 3 Rule 2 (b) Supreme Court Rules. Reference was also made to Mauga Logging Co Pty Ltd v. South Pacific Oil Palm Development Pty Ltd (No. 1) [1977] PNGLR 80 and Golobadana No 35 Ltd v. Bank of South Pacific Ltd (2002) N2309 as to the principles concerned and this court's jurisdiction. In his reply counsel for the applicants submitted that the principal in the Haiveta v. Wingti (No 3) [1994] PNGLR 197 case that the privileges accorded to members of Parliament, only applied to them so long as they keep within the framework of the law, which includes of course, the Constitution, applied in this instance. As the Judicial Conduct Act is against the Constitution it was submitted, the privileges accorded to members of Parliament in s.115 Constitution do not apply and so s.115 Constitution in this instance does not preclude this court from having the jurisdiction to make the interim orders sought.

6. Counsel for the applicants submitted that notwithstanding that the first to fourth respondents consist of members of Parliament, they are sued in their own names and are subject to the jurisdiction of this court.

7. Counsel for the first and second respondents supported by counsel for the other respondents submitted that as all of the respondents, apart from the State, are members of Parliament, if this court granted the orders sought, it would restrict the powers, privileges and immunities accorded to them under s.115 Constitution.

8. The injunctive relief sought is for the respondents to be restrained from initiating, implementing or taking any steps under the Judicial Conduct Act. The steps to which reference is made are steps available to the respondents as members of Parliament under the Judicial Conduct Act. Under s. 5 (3) Judicial Conduct Act, Parliament may take certain action. Parliament consists of members of Parliament. To restrain the first to fourth respondents as the application seeks, is to affect their ability to perform as members of Parliament. Section 115 (3) Constitution is specific in this regard:

"No member of 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...."

9. I note that in the Special Reference By Fly River Provincial Executive Council; Re-Organic Law on Integrity of Political Parties and Candidates (2010) SC1057, the five member Supreme Court said as to s.115 (3) Constitution:

".... unless a Member is charged with a leadership offence, a Member is not subject to the jurisdiction of any Court for exercising his powers or performing his duties, functions and responsibilities in Parliament."

10. As to the jurisdiction conferred on this court by Order 3 Rule 2 (b) Supreme Court Rules, clearly that does not take precedence over a constitutional provision. As to the submission of counsel for the applicants that s.115 Constitution only applies if the members of Parliament keep within the framework of the law and that as the Judicial Conduct Act is unconstitutional, s.115 does not apply; as I understand it, the Judicial Conduct Act is in force. The applicants have commenced this proceeding seeking to establish that the Judicial Conduct Act is unconstitutional, but at this point in time it is not. This court has not determined whether the Judicial Conduct Act is unconstitutional. The Act is not unconstitutional until the court so determines, if it so determines. I reject the submission therefore that it can be said that members of Parliament have not or will not work within the framework of the law if they exercise their powers under the Judicial Conduct Act.

11. Given the above, I am of the view that the respondents' submissions are correct. I am not satisfied that this court has the jurisdiction to ground the interim relief sought by the applicants. The relief sought in the application of the applicants filed 3rd April 2012 is refused. The costs of the respondents of and incidental to this application are to be paid by the applicants.

____________________________________________________________

Posman Kua Aisi Lawyers: Lawyers for the Applicants
Twivey Lawyers: Lawyers for the First and Second Respondents Warner Shand Lawyers: Lawyers for the Third Respondent
Henaos Lawyers: Lawyers for the Fifth Respondent