Application by Hon. Belden Namah [2021] PGSC 9; SC2061 (18 January 2021)

SC2061

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCC(OS) 9 of 2020 (IECMS)

Application pursuant to Constitution Section 18(1)

Application by the Honourable
Belden Namah, MP

Waigani: Hartshorn J
2021:11^th &18^th January

SUPREME COURT REFERENCE – practice and procedure - Application to Intervene by the Prime Minister

Cases Cited:

Reference by Igo Namona Oala (2011) SC1128
Application by Don Pomb Polye v. Theodore Zurenuoc and Ors (2016) SCC(OS) 3/16 unreported, unnumbered, delivered 1^st July 2016
Special Reference by Hon. Davis Steven (2019) SC1790
Reference by Hon. Belden Namah (2019) SC1896 and SC1898
Special Reference by Hon. Davis Steven (2019) SC1828
Application by Hon. Belden Namah (2020) SC2014
Application by Hon. Peter O’Neill (2020) SCC(OS) 7/20 unreported, unnumbered, delivered 30^th November 2020

Counsel:

Mr. G. Sheppard, for the Applicant
Mr. P. Kuman, for the First Intervener
Mr. L. Henao and Mr. R. Kawat, for the Second Intervener
Mr. M. Nale, for Hon. J. Marape, Prime Minister
18^th January 2021

1. HARTSHORN J: This is a decision on an application to intervene in this proceeding by the Prime Minister, Hon. James Marape (applicant).

Substantive Application

2. The substantive Application is applied for pursuant to s. 18(1) Constitution by Hon. Belden Namah (Applicant). He claims standing to make this Application on the basis amongst others, that he is the Leader of the Opposition in the National Parliament.

3. The Applicant requests the Supreme Court to declare that:

a) the Budget passed by the Parliament on 16^th December 2020 is unconstitutional, invalid and ineffective as the Plans and Estimates Committee did not meet as required by s. 209(3) Constitution;

b) the decision of the Parliament on 16^th December 2020 to adjourn the meeting of Parliament to 20^th April 2021, without deliberating or voting upon the Motion of No Confidence which it is alleged was before the Parliament, was not consistent with certain provisions of the Constitution.

4. The Applicant further requests the Court to order that the Speaker recall Parliament forthwith to debate and vote on the Motion of No Confidence as a matter of national urgency.

Intervention application

5. The applicant submits that his application to intervene in the Application should be granted as he has a peculiar interest in this Application as the issues raised therein directly affect him in the Office of Prime Minister which he holds as:

a) the Motion of No Confidence is against the applicant as Prime Minister;

b) the Application in essence seeks the recall of the Parliament so that the Motion of No Confidence will be moved against the applicant as Prime Minister;

c) if the Motion of No confidence is successful, the applicant will be the only person affected.

6. The first intervener, the Attorney General, does not take issue with the intervention application and counsel for the second intervener, the Speaker of Parliament, did not have instructions in regard to the application.

7. The Applicant objects to the intervention application as:

a) in essence, the only issue raised by the applicant in this intervention application is that the applicant has an interest as he is named in the Motion of No Confidence which was before the Parliament and not dealt with when the Parliament was adjourned;

b) this is not sufficient to give an interest such that intervention should be given. The subject matter of the Motion of No Confidence does not affect whether the adjournment of the Parliament before the said Motion was dealt with, was constitutional. Reliance is placed upon Application by Don Pomb Polye v. Theodore Zurenuoc and Ors (2016) SCC(OS) 3/16 unreported, unnumbered, delivered 1^st July 2016;

c) nothing can be said or added on this Application by the applicant, which the other interveners could not say or add.

Consideration

8. The applicant makes his intervention application pursuant to Order 4 Rules 21, 22 Supreme Court Rules. He relies upon two previous Applications in which the Prime Minister was permitted to intervene. Specifically, in SCC(OS) 3 of 2020 the subject of the Application was the election by the Parliament of the applicant as Prime Minister. Further, the Applicant in that Application had named the applicant as a person who may be directly affected by the relief sought in the Application. The applicant submits that these two previous Applications were concerned with the election of the Prime Minister and this Application is part of the process to oust the Prime Minister. The applicant submits therefore that he should be permitted to intervene as he will be the only one affected if the Motion of Confidence is successful.

9. Decisions concerning Applications made pursuant to s. 18(1) Constitution, such as this Application, in which applications to intervene have been made include: Reference by Igo Namona Oala (2011) SC1128, a decision of Davani J; Application by Don Pomb Polye v. Theodore Zurenuoc and Ors (2016) unreported, unnumbered, delivered 6^th July 2016 (Injia CJ, Salika DCJ (as they then were) and Makail J); my decisions in References and Application by Hon. Belden Namah (2019) SC1896, SC1898 and (2020) SC2014; and Application by Hon Peter O’Neill (2020) SCC(OS) 7/20 unreported, unnumbered, delivered 30^th November 2020 (Salika CJ, Manuhu J, Cannings J, Hartshorn J and Kariko J) (Previous proceedings made pursuant s.18(1) Constitution which were titled References are now referred to as Applcations)

10. In the decision of Davani J. in Oala (supra), 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 Application decision.

11. In Polye (supra) and O’Neill (supra), the applications to intervene concerned similar facts to those presently before this Court

12. In Polye’s case (supra), in delivering the reasons of the Court for refusing applications to intervene, Injia CJ (as he then was) said:

“The question to be determined in the substantive proceedings will be whether or not the Speaker acted in accordance with the law in dealing with the various notices of motion of no confidence before Parliament. That is the focus of the substantive proceedings.”

“..... 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.”

13. 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 as the real issues in the Application concerned the actions of the Speaker and the proceedings of Parliament concerning the motion of no confidence, the Prime Minister and the Leader of Government Business did not have any real interest in the subject matter of the Application.

14. More recently in O’Neill’s case (supra), the Prime Minister submitted that in essence he had a substantial interest because the alleged illegal adjournment of Parliament to 1^st December 2020 was made to facilitate a vote of no confidence against him and to challenge the Budget which Parliament purportedly had passed. The Court stated that the principles concerning an application to intervene were set out in Polye’s case (supra) and which were referred to in Special Reference by Hon Davis Steven (2019) SC1790 in which the test is stated as:

“For the purposes of an intervention application, a substantial interest and real interest 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 Reference.”

15. In refusing the intervention application the Court held that the rights and interests of the Executive are represented by the Attorney General and that the Prime Minister is part of the Executive. The Court was not satisfied that the Prime Minister had shown to the satisfaction of the Court, that he had a substantial or real interest, recognised in law, peculiar to him, which was likely to be directly affected by the issues in the Application.

16. Also, in Special Reference by Hon. Davis Steven (2019) SC1828 (Hartshorn J, Makail J, Dingake J), 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.”

17. In my decisions in Reference by Hon. Belden Namah (2019) SC1896 and SC1898 at [12] and Application by Hon. Belden Namah (2020) SC2014 at [14], I adopted the test referred to in Steven (SC1790 and SC1828) (supra). I am satisfied that this is the test to be applied in this instance.

18. It is the position that the applicant will be affected by the outcome of the Motion of No Confidence. That, however, is not the question to be determined in this Application. The questions to be determined are whether the passing of the Budget was unconstitutional and whether the Parliament was adjourned consistently with provisions of the Constitution. From a consideration of the decisions to which I have made reference and particularly Polye’s case (supra) and O’Neill’s case (supra) given the similar fact situations, in my view, the applicant has not satisfied this Court that he has a right or liability recognised in law which is peculiar to him which is directly or is likely to be affected by the issues in this Application.

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

Orders

20. It is ordered that:

1. The application of the Prime Minister. Hon. James Marape for leave to intervene filed 6^th January 2021 is dismissed;
   

b) No order as to costs.
__________________________________________________________________
Young & Williams: Lawyers for the Applicant
Kuman Lawyers: Lawyers for the First Intervener
Kawat Lawyers: Lawyers for the Second Intervener
Jema Lawyers: Lawyers for the Prime Minister