Reference pursuant to Section 18(1) of the Constitution [2020] PGSC 12; SC1921 (28 February 2020)

SC1921

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCC (OS) NO. 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: Manuhu, Yagi & Kariko, JJ
2020: 27^th & 28^th February

SUPREME COURT–appeal against single Judge’s decision, O.11 rr.25 & 26, Supreme Court Rules– application to intervene - considerations–appeal against exercise of discretion–applicable principles

Cases Cited:

Papua New Guinea v Stanley Barker [1977] PNGLR 386

Legislation:

Constitution

Supreme Court Rules

Counsel:

Mr. L Okil, for the Appellant

Mr. G Sheppard &Mr G Purvey, for the Referrer

Mr. M Nale, for the first Intervener

Mr. N Yalo, for the Second Intervener

Mr. C Mende, for the Third Intervener

28^th February, 2020

JUDGEMENT

1. BY THE COURT: This is an appeal against the order of his Honour Hartshorn J sitting as single Judge Supreme Court, whereby his Honour on 13^th December 2019 dismissed the appellant’s application to intervene in this Reference.
   
2. The appeal has been filed pursuant to O.11 rr. 25 and 26 of the Supreme Court Rules.
   
3. Parties heard on this appeal were:
   
   • the appellant – Hon. Manasseh Makiba, MP
   • the referrer – Hon. Beldan Namah, MP, the Leader of the Opposition
   • the first intervener – Hon. James Marape, MP, the Prime Minister
   • the second intervener – Hon. Davis Steven, MP, the Attorney-General
   • the third intervener – Hon. Job Pomat, MP, the Speaker of Parliament
     
4. The first intervener supported the appeal, while the other interveners took a neutral position.
   

The Reference

5. In his judgement, the primary Judge provides a concise description of the Reference which we would adopt as our own for the purpose of this appeal:
   

“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.”

Grounds of appeal

6. The appellant pleads four grounds of appeal.
   
7. The fourth pleading is a statement rather than a proper ground of appeal and we would strike it out as incompetent. From the remaining grounds, we discern two main challenges to the primary Judge’s decision:
   
   • That the primary Judge erred in law in interpreting s.50 of the Constitution in that it is an individual right, notwithstanding that other Members of Parliament may claim the same interest/right; and
   • That the primary Judge erred in law and fact in holding that the current interveners would adequately protect the interest of the appellant as a Member of Parliament.
     

Appealed Judge’s decision

8. There is no controversy regarding the relevant considerations for the Court, in its discretion, deciding whether or not to allow an application to intervene in references under the Constitution. After citing applicable case authorities, the primary Judge highlighted two such considerations, relevant to this appeal:
   
   • (1) The utility in allowing persons to intervene who would be repeating submissions by parties to the reference; and
     • (2) An applicant has a substantial or real interest, peculiar to the applicant, which will be or are likely to be affected by the issues in the Reference.
       
9. After noting these principles, his Honour then reasoned:
   

“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. To the extent that any rights that the applicant has pursuant to s.50 Constitution may be affected, those rights are not peculiar to the applicant. This is acknowledged by the applicant by implications, in submitting that he is the only one of the Members of Parliament who are all capable of claiming the same interests which he claims, to apply to intervene in this Reference to date.

13. As to the applicant’s position in the present Government being affected, I am not satisfied that such a position is a right or liability recognised in law peculiar to the applicant. Any Member of Parliament currently occupying one of the numerous ministerial or vice ministerial positions may claim that his position is similarly likely to be affected.

14.As to the argument that the current interveners will not protect the applicant’s interests, all of the current interveners are Members of Parliament and could not have been appointed to their respective positions if they were not. They also have an interest in protecting the rights of a Member of Parliament to vote in Parliament and to participate in the election and appointment of a Prime Minister. This in essence, is the interest in respect of which the applicant seeks to intervene. “

(Emphasis added)

Consideration

10. Based on case authorities such as Papua New Guinea v Stanley Barker [1977] PNGLR 386, a decision in the exercise of a discretionary power should only be disturbed by an appellate court if the court appealed:
    
    • acted upon a wrong principle of law;
    • gave weight to extraneous or irrelevant matters;
    • failed to take into account relevant considerations;
    • made a mistake as to the facts; or
    • in the absence of identifiable error made a decision that is unreasonable or plainly unjust.
      
11. It is plain to us that the appellant is urging upon us the same arguments that were put to Hartshorn J.
    
12. We are not persuaded that the right to hold office as a Member of Parliament is peculiar to the appellant. That right applies to all the Members of Parliament, including:
    
    • the Hon. Prime Minister who is the leader of the Government and indeed the National Executive Council, of which the appellant is a member,
    • the Hon. Attorney-General, who is the legal advisor to the Government, of which the appellant is a member, and
    • the Hon. Speaker of Parliament, who is responsible for proceedings in Parliament, of which the appellant is a member.
      
13. Consistent with that finding, we hold that the appellant’s interests in this Reference would be adequately protected by the interveners.
    
14. Accordingly, we are not satisfied that the primary Judge erred as claimed by the appellant.
    

Order

15. The Court orders that:
    
    • (1) The appeal is dismissed.
    • (2) The appellant shall pay the referrer’s costs of and incidental to this appeal.
    • (3) Time for entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith.
      

________________________________________________________________
Kimbu & Associates Lawyers: Lawyer for the Appellant
Young & Williams Lawyers: Lawyer for the Referrer
Jema Lawyers: Lawyer for the First Intervener
Nemo Yalo Lawyers: Lawyer for the Second Intervener
Wantok Legal Group: Lawyer for the Third Intervener