Special Reference pursuant to Section 19(1) Constitution, Special Reference by the Ombudsman Commission [2021] PGSC 67; SC2144 (27 August 2021)

SC2144

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE

SC REF 02 OF 2021

Special Reference pursuant to Section 19(1) Constitution

Special Reference by the Ombudsman Commission

In the matter of Constitution Sections 10, 11, 12, 13, 26, 27, 28, 29, 37, 41, 59, 99, 100, 155, 157, 159, 177, 197, 217, 218, 219, 220B, 220C, 220D and 220E and the Organic Law on the Independent Commission Against Corruption

Waigani: Hartshorn J.
2021: 6^th & 7^th August

SUPREME COURT REFERENCE - Applications to Intervene by Mr. Pondros Kaluwin, Hon. Job Pomat and Hon. Belden Namah

Cases Cited:

Special Reference by Hon. Davis Steven (2019) SC1790
Special Reference by Hon. Davis Steven (2019) SC1791
Special Reference by Hon. Davis Steven (2019) SC1828

Counsel:

Mr. A. Kupmain, for the Referrer
Mr. T. Tanuvasa, for the First Intervener
Mr. L. Henao and Mr. R. Kawat, for Hon. Job Pomat
Mr. S. Phannaphen, for Hon. Belden Namah
Ms. H. Roalakona, for Mr. Pondros Kaluwin

27^th August, 2021
1. HARTSHORN J. This is a decision on three contested applications to intervene in this Special Reference. The application is made by the Speaker of the National Parliament, Hon. Job Pomat, (Speaker), the Leader of the Opposition, Hon. Belden Namah (Opposition Leader) and the Public Prosecutor, Mr. Pondros Kaluwin (Public Prosecutor).

2. The Special Reference is applied for pursuant to s. 19(1) Constitution by the Ombudsman Commission of Papua New Guinea (referrer). The referrer does not oppose the applications to intervene. The first intervener, the Attorney General of Papua New Guinea, Dr. Eric Kwa, opposes the three applications to intervene.

Special Reference

3. The referrer seeks the opinion of the Supreme Court on questions relating to the interpretation or application of Constitutional Laws and specifically in relation to certain sections of the Organic Law on the Independent Commission Against Corruption (ORCAC)

The application by the Public Prosecutor

4. The first application which I consider is that by the Public Prosecutor. In his application, the Public Prosecutor relies upon Order 4 Rule 19 Supreme Court Rules. He does not rely upon any other jurisdictional basis. Order 4 Rule 19 does not provide the power to this court to grant the relief which is sought by the Public Prosecutor. No application to amend the application was made by counsel for the Public Prosecutor. As submitted by the first intervener, the jurisdiction of this court to grant the relief sought has not been enlivened by the reliance upon Order 4 Rule 19 Supreme Court Rules. The application is incompetent and is therefore dismissed.

The application by the Speaker

5. The Speaker submits that his intervention application should be granted as he has sufficient interest in the issues in the Special Reference as follows:

a) pursuant to s. 108 Constitution he is given certain responsibilities concerning and in respect of the Parliament;

b) the questions raised in the Special Reference are constitutional and serious;

c) he knows the reasons behind the approval decision of the certain Parliamentary Committee which preceded the passage of ORCAC and knows and keeps records of the Parliamentary stages which the ORCAC bill completed before it was passed;

d) there is a reference to Parliamentary Services in the Special Reference;

e) he has a direct interest in the interpretations sought in the Special Reference;

f) he is the head of the Parliament, the body which is responsible for passing the ORCAC into law and is entitled to be able to make submissions on what Parliament has passed;

g) at the first directions hearing for the Special Reference this court was of the view that the Speaker should be served with the Special Reference.

6. The first intervener submits that the Speaker’s application to intervene should be refused as amongst others:

a) the requirements for a successful intervention application are that the applicant must have a substantial interest and real interest. This is a right or liability recognised in law, peculiar to the applicant, which is directly or is likely to be directly affected by the issues in the Special Reference;

b) the Speaker does not have such an interest;

c) in the Special Reference the referrer does not take issue with the parliamentary process by which the ORCAC was passed or with any action or inaction of the Speaker either during that process or at all;

d) the Speaker is not identified in the Special Reference by the referrer as a person whose interests may be directly affected by the interpretation sought by the referrer.

Consideration

7. The Speaker makes his intervention application pursuant to Order 4 Rule 21 Supreme Court Rules. As this is the correct rule to be relied upon for this application, no objection was taken to the reliance upon it.

8. This is a Special Reference made pursuant to s. 19(1) Constitution. In Special Reference by Hon. Davis Steven (2019) SC1828 (Hartshorn J, Mikail J, Dingake J), the Court deliberated upon an application to intervene. After considering authority, the Court stated at [14]:

“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.”

9. I also make reference to Special Reference by Hon. Davis Steven (2019) SC1790 at [12] and Special Reference by Hon. Davis Steven (2019) SC1791 at [14].

10. It was conceded by counsel for the Speaker that the Special Reference does not question that the ORCAC was properly passed. Moreover, any action or inaction of the Speaker is not put into issue. That the Speaker has certain responsibilities pursuant to s. 108 Constitution and is responsible for the Parliament does not bestow upon the Speaker a right or liability peculiar to him which is put into issue in this Special Reference and which is therefore likely to be directly affected. Further, that this court at a directions hearing required that the Speaker be served with the Special Reference, does not confer upon him an interest that he would not otherwise enjoy.

11. As to the submission that [5.18] and [5.20] of the Amended Special Reference refers to Parliamentary Services, the Speaker does not give evidence as to how such reference confers upon him a special or real interest peculiar to him and which is likely to be directly affected.

12. Adopting the test referred to in Special Reference by Hon. Davis Steven (supra), in my view, the Speaker has not satisfied this court that he has the requisite interest. He has not enunciated a right or liability recognised in law, peculiar to the office of Speaker, which is directly or which is likely to be directly affected by the issues in this Special Reference.
13. Consequently, for the above reasons, the application of the Speaker to intervene in this Special Reference should be dismissed.

Application by the Opposition Leader

14. The Opposition Leader correctly applies pursuant to Order 4 Rule 21 Supreme Court Rules to intervene. He submits that he has a right and liability in law and that his application to intervene should be granted as amongst others:

a) he represents the people of his electorate and the Members of Parliament who constitute the Opposition;

b) he was not able to exercise his representative rights under s. 50 Constitution as he was not present in the Parliament when the ORCAC was passed. The Opposition requires to be heard;

c) very important constitutional issues are raised by the Special Reference. The Opposition Leader will support the referrer, whereas the Attorney General on behalf of government, will not;

d) as Opposition Leader he is a member of the Ombudsman Commission Appointments Committee and the roles and members of the Ombudsman Commission are questioned in the Special Reference;

15. The first intervener submits that the application of the Opposition Leader should be refused as amongst others:

a) the Opposition Leader does not have a right or liability recognised in law peculiar to him which would directly or is likely to be directly affected by the issues of the Special Reference;

b) the absence from the Parliament of the Opposition Leader when the ORCAC was debated and passed does not confer a right upon the Opposition Leader to intervene in the Special Reference;

c) the Opposition Leader would only be repeating submissions of the referrer, if he is permitted to intervene.

Consideration

16. I refer to the test in Special Reference by Hon. Davis Steven (supra).

17. Adopting that test, in my view, the Opposition Leader has not satisfied this court that he has the requisite interest. No right or liability recognised in law, peculiar to the Opposition Leader which is directly or likely to be directly affected by the issues in this Special Reference have been identified. Section 50 Constitution does not confer a right peculiar to the Opposition Leader. Further, that the Opposition Leader was not present in the Parliament when the ORCAC was debated and passed does not in some way provide him with a right to intervene in this Special Reference. The Opposition Leader is a Member of Parliament. He does not have any interest in the issues of this Special Reference which are superior or peculiar to the interests of other Members of Parliament.

18. The Ombudsman Commission Appointments Committee of which the Opposition Leader is a member is concerned with the appointments of members of the Ombudsman Commission. Membership of this Committee does not confer a liability or right peculiar to the Opposition Leader which is directly or is likely to be affected by issues in this Special Reference as those issues are not concerned with appointments to the Ombudsman Commission. Moreover, any submissions to be made concerning the Ombudsman Commission are to be made by the referrer – the Ombudsman Commission.

19. Further the position to be taken and argued in a Special Reference by a successful intervention applicant is not a factor that the courts have considered in determining an intervention application. As referred to, the test is concerned with the requisite interests of the applicant. It is not concerned with the position that he will argue if his intervention application is successful.

20. Consequently, I am not satisfied that the Opposition Leader has satisfied this court that he has a right or liability recognised in law which is peculiar to the Opposition Leader, which is directly or is likely to be directly affected by the issues in this Special Reference.

21. Consequently, for the above reasons, this application of the Opposition Leader should be dismissed.

Orders

22. It is ordered that:

a) The applications of Mr. Pondros Kaluwin filed 29^th July 2021, the Hon. Job Pomat filed 21^st July 2021 and the Hon. Belden Namah filed 20^th July 2021 are dismissed;

b) The three applicants shall pay the costs of the first intervener of and incidental to their respective applications.
__________________________________________________________________
Ombudsman Commission: Lawyers for the Referrer
Solicitor General: Lawyers for the First Intervener
Office of the Public Prosecutor: Lawyers for Mr. P. Kaluwin
Kawat Lawyers: Lawyers for Hon. J. Pomat
Lhryn Lawyers: Lawyers for Hon. B. Namah