Reference pursuant to Section 18(1) of the Constitution [2019] PGSC 126; SC1896 (11 November 2019)

SC1896

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCC (OS) 4 OF 2019

Reference pursuant to Section 18(1) of the Constitution

Reference by the Honourable Belden Namah, MP in his capacity as the Leader of the Opposition

In the matter of Constitution Sections 11, 32, 41, 50, 59, 108, 142 and 158(2)

Waigani: Hartshorn J
2019: 4^th & 11^th November

SUPREME COURT REFERENCE - Application to Intervene by Hon. Dr. Allan Marat – whether the applicant has substantial interest in the issues to be decided in the case – applicant has not satisfied the court that he has such an interest – application to intervene dismissed

Cases Cited:

Reference by Igo Namona Oala (2011) SC1128
In re Re-Election of the Governor General, Special Reference by Morobe Provincial Executive (2012) SC1202
Application by Don Pomb Polye v. Theodore Zurenuoc and Ors (2016) unreported, unnumbered, delivered 6th July 2016
Special Reference pursuant to Section 19(1) Constitution by Hon. Davis Stephen (2019) SC1790
Special Reference pursuant to s. 19(1) Constitution (2019) SC1828

Counsel:

Mr. G. Sheppard and Mr. G. Purvey, for the Referrer
Mr. M. Tamutai, for Hon. Dr. Allan Marat

11^th November, 2019

1. HARTSHORN J: This is a decision on an application to intervene in this Reference by Hon. Dr. Allan Marat, the Member of Parliament for the Rabaul Open Electorate and the Deputy Opposition Leader (applicant).

2. This Reference is applied for pursuant to s. 18(1) Constitution by the Leader of the Opposition, Hon. Belden Namah (referrer). The referrer does not oppose the application to intervene by the applicant.

Reference

3. The referrer seeks the opinion of the Supreme Court on questions relating to the interpretation or application of sections of the Constitution concerning the election of Hon. James Marape as Prime Minister on 30^th May 2019 by the Parliament and before that election, the purported withdrawal of the nomination of Hon. Peter O’Neill for the position of Prime Minister and the actions of the Speaker of Parliament in accepting that withdrawal.

This application

4. The applicant submits that his application to intervene in this Reference should be granted as:

a) he has sufficient interest as he nominated Hon. Sir Mekere Morauta for the position of Prime Minister;

b) his said nomination was the third nomination of a candidate for the position of Prime Minister at the relevant time. This would have resulted in an elimination process occurring pursuant to Orders 7A 9-11 and 7B Standing Orders, if the said nomination of Hon. Peter O’Neill had not been purportedly withdrawn;

c) the applicant is interested in whether the purported withdrawal of the nomination of Hon. Peter O’Neill and its acceptance, circumvented Standing Orders 7A 9, 10, 11 and 7B and his rights pursuant to, he submits, the right:

i) to a reasonable opportunity to participate in the conduct of public affairs: s.50(1) Constitution;

ii) to freedom of choice and the exercise of conscience: s.45 Constitution;

iii) of the opportunity to be heard: s. 59 Constitution;

iv) to protection of the law: s. 37(1) Constitution.

Consideration

5. The applicant makes his application for leave to intervene pursuant to Order 4 Rule 21 and 22 Supreme Court Rules.

6. In the decision of Davani J. in Reference by Igo Namona Oala (2011) SC1128, after a detailed consideration, including of several Australian High Court cases, Her Honour held amongst others, that the discretion to grant leave to intervene is a very wide one and that an applicant must have a substantial interest in the issues to be decided in the case. This interest can be a direct interest or in effect, an interest in another proceeding that an applicant has which may be affected by the Reference decision.

7. More recently in the decision in Application by Don Pomb Polye v. Theodore Zurenuoc and Ors (2016) unreported, unnumbered, delivered 6^th July 2016 (Injia CJ, Salika DCJ, Makail J), in delivering the reasons of the Court for refusing applications to intervene, Injia CJ (as he then was) said:

“..... we do not believe..... those other persons have any real interest in terms of that substantive issue.” and;

“..... we do not consider that the applicants intervening in this case have any real interest in the substantive issue that is before the court for determination, and the applications should be dismissed for that main reason.”

8. The court held in Polye’s case (supra), brought by a former Leader of the Opposition, which concerned amongst others, motions of no confidence, that the Prime Minister and the Leader of Government Business did not have any real interest in the subject matter of the Reference.

9. Both Oala’s case (supra) and Polye’s case (supra) concerned References filed under s. 18(1) Constitution as is the case with this Reference.

10. I also make reference to In re Re-Election of the Governor General, Special Reference by Morobe Provincial Executive (2012) SC1202, as. 19(1) Special Reference case in which, at [17] the five member Court said:

“We agree with the reservations expressed by Davani J in Reference Pursuant to Section 18(1) of the Constitution by Igo Namona Oala & Oala Moi (2011) SC1128 about the Court perhaps being overly liberal in the past in permitting interveners to join constitutional references. Her Honour doubted the utility of allowing persons to intervene when all that they would be doing would be repeating submissions of the principal party.”

11. Then in Special Reference pursuant to s. 19(1) Constitution (2019) SC1828 the Court stated at [14]:

“From a consideration of the above cases, to our minds for the purposes of an intervention application, a substantial interest and real interest is a right or liability recognised in law, peculiar to an applicant, which is directly or is likely to be directly affected by the issues in the Reference.”

(See also Special Reference pursuant to Section 19(1) Constitution by Hon. Davis Stephen (2019) SC1790 at [12].)

12. Adopting this test, the applicant in his evidence and in the grounds relied upon in this application in my view, has not satisfied this court that he has such an interest. That he nominated a Member of Parliament for the position of Prime Minister at the subject time, does not confer upon him a substantial interest and real interest in a right or liability recognised in law, peculiar to him, which is directly or likely to be directly affected by the issues in this Reference. Any Member of Parliament may have nominated, as did the applicant and for the reasons to which the applicant has deposed, one of which was that he intended to utilise certain Standing Orders.

13. The applicant’s interest in this Reference, cannot be categorised as peculiar to him.

14. Further, it is worthy of note that in this instance the applicant’s nominee for the position of Prime Minister was one of the two contestants for the position voted upon by the Parliament. It is not the case therefore, that it may be argued that the applicant’s nominee for the position of Prime Minister was not considered by the Parliament and that such a circumstance gave rise to an interest warranting an intervention in the Reference.

15. Consequently, for the above reasons, this application of the applicant should be dismissed.

Orders

16. It is ordered that:

a) The application of Hon. Dr. Allan Marat for leave to intervene in this Reference filed 4^th October 2019 is dismissed;

b) No order as to costs
__________________________________________________________________
Young & Williams Lawyers: Lawyers for the Referrer
Tamutai Lawyers: Lawyers for the Hon Dr. A. Marat