SC1791

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR 4 and 5 of 2018

Special References pursuant to Section 19(1) of the Constitution

Special References by the Honourable Davis Steven, MP in his capacity as the Attorney General and Principal Legal Advisor to the National Executive Council

In the matter of Constitution Sections 11, 18, 19, 99, 108, 111, 115, 122, 124, 133, 134, 141, 142, 145, 155(b) and 162

SCR 4 of 2018: Sections 2 and 3 of the Organic Law on the Calling of Meetings of the Parliament
SCR 5 of 2018: Section 63 of the Organic Law on the Integrity of Political Parties

Waigani: Hartshorn J.
2019: 8th &18th March

CONSTITUTIONAL LAW- Special reference under s19 (1) Constitution - application to Intervene by Hon. Patrick Pruaitch – 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 – reference filed under s18 (1) Constitution is different to S19 Special References – references by previous opposition leaders are brought under s18 Constitution and not s19 – applicant does not have substantial or real interest – application dismissed

Cases Cited: 

Application by Don Pomb Polye v. Theodore Zurenuoc and Ors (2016) unreported, unnumbered, delivered 6th July 2016
In re Re-Election of the Governor General, Special Reference by Morobe Provincial Executive (2012) SC1202 
Reference by Igo Namona Oala (2011) SC1128 

Counsel:

Mr. M.M. Varitimos QC, Ms. T. Twivey and Mr. J. Sione, for the Referrer
Mr. L. Henao, for Hon. Patrick Pruaitch

18th March, 2019

1.    HARTSHORN J. This is a decision on contested applications to intervene by Hon. Patrick Pruaitch (applicant) in two Special References. 

2.   The Special References are applied for pursuant to s. 19(1) Constitution by Hon. Davis Steven, the Attorney General of Papua New Guinea and the Principal Legal Adviser to the National Executive Council (referrer). The referrer opposes the applications to intervene by the applicant.

Special References

SCR 4 of 2018

3.   The referrer seeks the opinion of the Supreme Court on questions relating to the interpretation or application of Constitutional Laws concerning the non-justiciability of Parliament, its committees and their procedures; the duties of the Speaker; the duties of the Clerk of Parliament; the calling of meetings of Parliament and whether one Supreme Court is able to declare a decision or order of another Supreme Court unconstitutional and invalid.

SCR 5 of 2018

4.   The referrer seeks the opinion of the Supreme Court on questions relating to the interpretation or application of Constitutional Laws concerning the Alternate Prime Minister and the effect of s. 63 Organic Law on the Integrity of Political Parties and Candidates, votes of no confidence and justiciability, whether a Supreme Court is able to declare a decision or order of another Supreme Court unconstitutional or invalid and the interpretation of “total number of seats in the Parliament” in s. 145(1)(b) Constitution.

These applications

5.  The applicant submits that his applications to intervene in the Special References should be granted as he has a substantial interest in the subject matter of the Special References as amongst others:

a)	he is currently the Leader of the Opposition and as such is an Alternate Prime Minister and both Special References touch upon his interests as Leader of the Opposition;

b)	both Special References were triggered by and follow on from a 	Reference by a former Leader of the Opposition;

c)	former Leaders of the Opposition have been involved in numerous 	References;

d)	these Special References concern votes of no confidence and the Leader of the Opposition has a direct interest in that issue.

6. The referrer opposes the intervention of the applicant as:

a)	the applicant does not have any real or substantial interest in the substantive issues raised in the Special References;

b)	the Leader of the Opposition is merely a Member of Parliament. Every Member of Parliament is theoretically an Alternate Prime Minister;

c)	a previous Reference in which the Leader of the Opposition was involved was pursuant to s. 18(1) Constitution. These are Special References pursuant to s. 19(1) Constitution;

d)	a s. 19(1) Special Reference is not the same as a s. 18(1) Reference;

e)	in a previous Reference under s. 18(1) Constitution brought by a former Leader of the Opposition which concerned amongst others, motions of no confidence, applications to intervene separately by the Prime Minister and the Leader of Government Business were refused on the basis that they did not have any real interest. Those applications were more meritorious than these applications of the applicant;

f)	the grounds contained in the applications to intervene of the applicant do not establish a real interest or a substantial interest in the issues to be decided in these Special References. 

Consideration

7.   The applicant makes his applications for leave to intervene pursuant to Order 4 Rule 21 Supreme Court Rules 2012. 

8.    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.

9.    It was submitted on behalf of the applicant that amongst others, as Leader of the Opposition he is an Alternate Prime Minister; the previous Reference concerning votes of no confidence was brought by a former Leader of the Opposition and Leaders’ of the Opposition have brought numerous References in the past on different subjects. Consequently, the applicant should be granted leave to intervene in these Special References it is submitted. 

10.   The referrer cited the decision in Application by Don Pomb Polye v. Theodore Zurenuoc and Ors (2016) unreported, unnumbered, delivered 6th 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.”

11.   The court held in Polye’s case, 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.

12.    Both Oala’s case and Polye’s case concerned References filed under s. 18(1) Constitution. These References are Special References filed under s.19(1) Constitution. 

13. In In re Re-Election of the Governor General, Special Reference by Morobe Provincial Executive (2012) SC1202, a s.19(1) Special Reference case, 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.”

14.   From a consideration of the above cases, to my mind 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.

15.    Adopting this test, the applicant in the evidence filed on his behalf and in the grounds relied upon in these applications has not satisfied this court that he has such an interest. Notwithstanding that he is currently the Leader of the Opposition, the applicant is also a Member of Parliament. Any Member of Parliament is theoretically an Alternate Prime Minister. The applicant’s interest in these Special References in my view, cannot be categorised as peculiar to him. The previous References in which a Leader of the Opposition has been involved were s. 18 Constitution References and not s. 19(1) Special References. They are therefore not precedents for the applicant’s intervention in this instance.

16.   Given the above, the applications of the applicant to intervene in these Special References should be refused.

Orders

17. It is therefore ordered that:

a)	The applications of Hon. Patrick Pruaitch for leave to intervene in these Special References filed 21st February 2018 are dismissed;

b)	Hon. Patrick Pruaitch shall pay the costs of the referrer of and incidental to these said applications to be taxed if not otherwise agreed.

__________________________________________________________________
Twivey Lawyers: Lawyers for the Referrer               
Henaos Lawyers: Lawyers for the Hon. Patrick Pruaitch