Application by Namah [2021] PGSC 25; SC2105 (12 May 2021)

SC2105

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCCOS NO 1 OF 2021

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)

APPLICATION BY THE HONOURABLE
BELDEN NAMAH MP

Waigani: Salika CJ, Cannings J,
Hartshorn J, Kariko J, Anis J
2021: 12^th May

PRACTICE AND PROCEDURE – objection to competency of proceedings commenced as application under Constitution, s 18(1) – whether application compliant with Supreme Court Rules – whether application pleaded relief for which the applicant contends – Supreme Court Rules 2012, Order 4, Rules 1 and 3.

Both interveners to an application under s 18(1) of the Constitution (which challenged the constitutionality of the 2021 National Budget passed by the Parliament on 16 December 2020 and decisions of the Parliament and the Speaker regarding a motion of no confidence in the Prime Minister) objected to competency of the application on the ground that it did not state the relief for which the applicant was contending and was therefore non-compliant with Order 4, Rule 3(c) of the Supreme Court Rules. The applicant argued that paragraph 3 of his application stated that he was seeking declarations as to the unconstitutionality of the 2021 National Budget and decisions of the Parliament and the Speaker regarding a motion of no confidence in the Prime Minister, and such declarations are a form of relief and that there was no need for him to seek consequential relief, so the objections to competency should be refused.

Held:

(1) To comply with the Supreme Court Rules and to be competent, a s18(1) application must under Order 4, Rule 3(c) state “ the answer or interpretation [of the constitutional provisions the subject of the application] and relief for which the applicant contends”.

(2) The application in paragraph 3 seeks declarations as to the unconstitutionality of the 2021 National Budget and decisions of the Parliament and the Speaker regarding a motion of no confidence in the Prime Minister.

(3) It is trite that a declaration is a form of relief commonly sought in many proceedings in the original jurisdiction of the National Court and the Supreme Court.

(4) There is no need in a s18(1) to separately plead the interpretation of the constitutional provisions being sought and the relief being sought. It is proper and compliant with the Supreme Court Rules to combine those two requirements of the Rules.

(5) Both objections to competency refused, with costs.

Case Cited
The following cases are cited in the judgment:

Application by Hon Peter O’Neill MP (2020) SC2043
Application by Morobe Provincial Government (2012) SC1190
Application by Namah (2021) SC2082
Namah v Pato [2013] 1 PNGLR 205
Re Reference by Ken Norae Mondiai (2010) SC1087
Reference by Hon Belden Norman Namah MP (2020) SC1934
SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917
SC Ref No 4 of 1987; Re Central Provincial Government and NCDIC [1987] PNGLR 249
Special Reference by Morobe Provincial Executive (2010) SC1089

OBJECTIONS
These were objections to competency of an application under s 18(1) of the Constitution.

Counsel

G J Sheppard & P Tabuchi, for the Applicant
P Kuman for the First Intervener, the Attorney-General
L Henao & K R Kawat, for the Second Intervener, the Speaker of the National Parliament

12^th May, 2021

1. BY THE COURT: This is a ruling on two objections to competency of an application to the Supreme Court under s 18(1) of the Constitution.

2. The application was filed by the applicant, the Honourable Belden Namah MP, on 18 March 2021. He challenges the constitutionality of the 2021 National Budget passed by the Parliament on 16 December 2020 and decisions of the Parliament and the Speaker regarding a motion of no confidence in the Prime Minister.

3. The Attorney-General, Dr Eric Kwa, and the Speaker of the National Parliament, the Honourable Job Pomat MP, have been granted leave to join the proceedings as first intervener and second intervener respectively. The first intervener objects to competency of the application (by a notice of objection filed 9 April 2021) and the second intervener objects to competency of the application (by a notice of objection filed 19 April 2021) on the ground that the application does not state the relief for which the applicant is contending and is therefore non-compliant with Order 4, Rule 3(c) of the Supreme Court Rules.

4. The applicant argues that paragraph 3 of his application states that he is seeking declarations as to the unconstitutionality of the 2021 National Budget and decisions of the Parliament and the Speaker regarding a motion of no confidence in the Prime Minister, and such declarations are a form of relief and that there was no need for him to seek consequential relief, so the objections to competency should be refused.

SUPREME COURT RULES
5. Order 4, Rules 1 and 3 and Form 1 of the Supreme Court Rules prescribe the requirements for commencement of an application under s 18(1) of the Constitution.

6. Order 4, Rule 1 states:

An application under Constitution Section 18(1) shall be instituted by an application in Form 1 and shall —

(a) be entitled under Constitution Section 18(1) with the year and number of the reference; and

(b) be endorsed with —
(i) the name of the person making the application;

(ii) an application for a declaration that the applicant has standing to make the application;

(c) be signed by the person making the application; and

(d) be filed in the Registry.

7. Order 4, Rule 3 states:

An application under Constitution Section 18(1) shall state —

(a) the basis on which the applicant claims standing to make the application;

(b) the Section of a Constitutional Law the applicant requests to have interpreted;

(c) the answer or interpretation and relief for which the applicant contends;

(d) the facts out of which the request arises;

(e) whether a question of fact arises for determination by the Court on the application;

(f) the names of the persons or bodies whose interests may be directly affected by the interpretation sought by the applicant. [Underlining added.]

8. Form 1 is set out as follows:

GENERAL FORM OF APPLICATION (CONSTITUTION S 18(1))

IN THE SUPREME COURT SCA No of 20
OF JUSTICE (Insert number and year)

Application Pursuant to
Constitution Section 18(1)

Application by (Insert name of person making application)

APPLICATION

To the Supreme Court:

APPLICATION TO INTERPRET SECTION... (insert Section number)... OF (Insert Constitution or the name of the Constitutional Law)

1. The applicant requests the Court to declare that the applicant has standing to make this application, and after that declaration, the finding sought in paragraph 3 below.
   
2. The basis on which the applicant claims standing to make this application is:
   
3. The applicant requests the Court to declare that the proper interpretation or application of Section... of... (Insert the Constitution and relevant Section or name of a Constitutional Law and Section) is:
   

4. The facts out of which the request arises are:

5. Whether a question of fact arises for determination by the Court on the application. (If questions of fact need to be determined the Court may, in accordance with Order 3, Rule 3 direct a Judge to find the facts, before the issue of constitutional interpretation is referred to the Supreme Court.)
   
6. The names of the persons or bodies whose interests may be directly affected by the interpretation sought by the person making the application are: (insert names of persons whose interests may be affected, with a positively or adversely).
   

DATED:

Sgd
___________ (To be signed by person
making the application)

FILED BY: (Form 17)

Application for Directions

Application will be made to a Judge of the Supreme Court Waigani at ... am on the day of ... 20...

______________
Registrar

A respondent or intervener may file a Statement of Response.

PARAGRAPH 3 OF THE APPLICATION

9. We note that the interveners do not take exception to the form of the application. They concede that it is compliant with the Rules. However, they argue that paragraph 3 is deficient in that it does not state the relief for which the applicant contends, and that there is nowhere else in the application that pleads the relief being contended for by the applicant.

10. The applicant responds that paragraph 3 does contain the relief for which the applicant is contending.

11. Paragraph 3 states:

The Applicant requests the Court to declare that upon the proper interpretation or application of:

a. Sections 11, 50, and 209(3) of the Constitution, to the facts matters circumstances of this case, the Budget passed by the Parliament on the 16th December 2020 was not passed in a manner consistent with Constitution, and is consequently unconstitutional, invalid and ineffective for the following reasons:

i. for the purpose of s 209(3) of the Constitution, the appropriate Permanent Parliamentary Committee is the Plans and Estimates Committee (“the P&E Committee”).

ii. The P&E Committee does not have power to sit when Parliament is in recess.

iii. The P&E Committee sat to discharge their constitutional duty in relation to the Budget on 17th November 2020, but the sitting of Parliament on that day was declared unconstitutional by the Supreme Court on Wednesday 9th December 2020, (“the Declaration”).

iv. the Declaration had the effect of rendering the whole Budget process in the Parliament, void ab initio (due to the unconstitutionality of the sitting of parliament on that day) including the meeting of the P&E Committee held on that day (the 17th November 2020), which is a committee of Parliament.

v. in breach of the mandatory requirements of s 209(3) of the Constitution, the P&E Committee did NOT meet on the 16th December 2020, or validly at any other relevant time, and did not discharge the constitutional duty imposed upon s 209(3) of the Constitution in the process of passing the Budget. [sic]

vi. consequently, the Budget purportedly passed by the Parliament on the 16th December 2020 was not passed in a manner consistent with Constitution, and is unconstitutional, invalid and ineffective.

b. sections 11, 111, 115, 142 and 145 of the Constitution, to the facts matters and circumstances of this case, the Parliament made an unreasonable decision to adjourn Parliament for an unsubstantiated reason, and which prevented the notice of Motion of No Confidence from being moved on the 16th December 2020, and deprived members of their right to move the Motion of No Confidence.

c. sections 111 and 115 of the Constitution, to the facts matters and circumstances of this case, the Speaker breached these sections 111 and 115 of the Constitution by depriving Members of Parliament of their right to move the Motion of No Confidence, and to debate and vote on the Motion of No Confidence with complete freedom.

d. section 115 of the Constitution, to the facts matters and circumstances of this case, the Speaker breached sections 115 of the Constitution by depriving Parliament of its conduct of the Motion of No Confidence by failing to take steps to clear the Notice of Motion of No Confidence in time for Parliament to consider it on the 16th December 2020.

DOES THE APPLICATION COMPLY WITH THE SUPREME COURT RULES?

12. We have no difficulty with the interveners’ contention that strict compliance with the Supreme Court Rules is necessary and that if an application is non-compliant with the Rules, this is a matter that goes to competency of the application. We adopt what was said by this Court in a successful objection to competency in Application by Namah (2021) SC2082 that a rather strict standard of compliance must be adhered to as we are dealing with an application that seeks to invoke the original jurisdiction of the Supreme Court directly under the Constitution.

13. The principle of strict compliance with the Rules has been developed in the context of the filing of special references under s 19 of the Constitution. References have been dismissed as incompetent for failure to meet the signing requirements of the Rules: SC Ref No 4 of 1987; Re Central Provincial Government and NCDIC [1987] PNGLR 249, SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917, Special Reference by Morobe Provincial Executive (2010) SC1089, Application by Morobe Provincial Government (2012) SC1190. The Court has recognised the need to protect the processes of the Court from abuse. If a party approaches the Court directly under the Constitution, the Court must insist that its procedures are strictly complied with.

14. We have therefore applied a standard of strict compliance with the Rules and we have concluded that the application does meet that standard.

15. We uphold the submissions of Mr Kuman and Mr Henao for the first and second interveners respectively, that to comply with the Supreme Court Rules and to be competent, a s 18(1) application must under Order 4, Rule 3(c) state “the answer or interpretation [of the constitutional provisions the subject of the application] and relief for which the applicant contends”.

16. However, we uphold the submission of Mr Sheppard for the applicant, that the application, in paragraph 3, does in fact and law seek declarations as to the unconstitutionality of the 2021 National Budget and decisions of the Parliament and the Speaker regarding a motion of no confidence in the Prime Minister. It seeks four declarations, viz that:

1. the Budget passed by the Parliament on 16 December 2020 was not passed in a manner consistent with the Constitution, and is consequently unconstitutional, invalid and ineffective;
   
2. the Parliament made an unreasonable decision to adjourn Parliament for an unsubstantiated reason, which prevented the notice of motion of no confidence being moved on 16 December 2020, and deprived members of their right to move the motion of no confidence;
   

100. the Speaker breached ss 111 and 115 of the Constitution by depriving members of Parliament of their right to move the motion of no confidence, and to debate and vote on the motion of no confidence with complete freedom;
     

4. the Speaker breached s 115 of the Constitution by depriving Parliament of its conduct of the motion of no confidence by failing to take steps to clear the notice of motion of no confidence in time for Parliament to consider it on 16 December 2020.
   

17. A declaration is in Papua New Guinea a form of relief commonly sought in many proceedings in the original jurisdiction of the National Court and the Supreme Court. There is no doubt about this. It was suggested in submissions for the interveners that simply seeking a declaration without seeking consequential relief does not meet the requirements of the Rules. We reject that submission. The applicant is seeking declarations. That is the relief for which he is contending.

18. There is no need in a s 18(1) application to separately plead the interpretation of the constitutional provisions being sought and the relief being sought. It is proper and compliant with the Supreme Court Rules to combine those two requirements of the Rules.

19. The application is compliant with Order 4, Rule 3(c) of the Supreme Court Rules.

CONCLUSION

20. The application is compliant with the Rules. It meets the standard of strict compliance required. The jurisdiction of the Court has been properly invoked. Both objections to competency are therefore refused. Costs will follow the event.

ORDER

(1) The objections to competency filed by the first intervener on 9 April 2021 and by the second intervener on 19 April 2021 are refused.

(2) The first and second interveners shall pay the applicant’s costs of each objection on a party-party basis, which shall, if not agreed, be taxed.

____________________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant
Kuman Lawyers: Lawyers for the First Intervener
Kawat Lawyers: Lawyers for the Second Intervener