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Application by James Yali [2022] PGSC 91; SC2288 (1 September 2022)

SC2288


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCC(OS) NO. 8 OF 2020


APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)


APPLICATION BY JAMES YALI


Waigani: Salika CJ, Yagi J, Kariko J
2022: 29th July & 1st September


CONSTITUTIONAL LAW – application under s 18(1), Constitution – standing – whether applicants have sufficient interest – whether significant constitutional issues raised


PRACTICE & PROCEDURE – abuse of process – whether Supreme Court can review its own decision


PRACTICE & PROCEDURE – general discretion to dismiss proceeding for undue delay


Two nominees to contest the 2022 general elections were disqualified after the Supreme Court decided on 31 May 2022 in SC Ref No 6 of 2022 – Special Reference by the Attorney General under s 19 of the Constitution that pursuant to s 103(3)(e) of the Constitution which was inserted by the Constitutional Amendment No. 24 – Electoral Reforms, a person convicted of an indictable offence committed after commencement of the Constitutional Amendment, being 25 June 2002, is not qualified to be a member of the Parliament. Application was filed under s 18(1) of the Constitution challenging the validity of the Constitutional Amendment. The disqualified nominees are the applicants in this proceeding, and they first seek declarations that they have standing which is opposed on grounds that they do not have sufficient interest and the application does not raise significant constitutional issues.


Held:


(1) The applicants have sufficient interest in the subject matter of the application under s 18(1) of the Constitution.
(2) No significant constitutional issues are raised by the Application as the issues raised were decided earlier by the Supreme Court in a s 19 special reference under the Constitution.
(3) The proceeding is dismissed as an abuse of process as it is essentially seeking a review of an earlier decision of the Supreme Court.
(4) The proceeding is also dismissed as there has been undue delay of twenty years in challenging the validity of the subject constitutional amendment.

Cases Cited:


Application by Joseph Kintau (2011) SC1125
Gadiki v Logae (2021) SC2102
Michael Newall Wilson v Clement Kuburam (2016) SC1489
Namah v O’Neill (2015) SC1617
Namah v Pato (2014) SC1304
Re Petition of M T Somare [1981] PNGLR 265
SC Ref No 2 of 2022 – Special Reference by the Attorney General under s 19 of the Constitution (Unreported Judgement dated 4 May 2022)
SC Ref No 6 of 2022 – Special Reference by the Attorney General under s 19 of the Constitution (Unreported Judgement dated 31 May 2022)
Special Reference by the Honourable Davis Steven (2020) SC2041
Yali v Yama (2018) N7145
Yama v Singirok (2020) SC1982


Legislation:


Constitution
Organic Law on the Integrity of Political Parties and Candidates
Supreme Court Rules


Counsel:


G J Sheppard & G Kult, for the First Applicant
J Wohuinangu, for the Second Applicant
E Thomas, for the First Intervener
L Mamu, for the Second Intervener
S Renewa, for the Third Intervener
J Simbala, for the Fourth Intervener
E Geita & T Mileng, for the Fifth Intervener


APPLICATIONS


These were applications requesting for declarations that the applicants have standing to make application under s 18(1) of the Constitution.


1st September, 2022


  1. BY THE COURT: The applicants James Yali and Justin Parker, who were disqualified by the Electoral Commissioner from contesting in this year’s general elections, request this Court to declare that they have standing to make an application to the Court under s 18(1) of the Constitution (“the Application”) seeking declarations as to the constitutional validity of the Constitutional Amendment No. 24 – Electoral Reforms (“the Constitutional Amendment”).

THE APPLICATION


  1. Mr Yali filed the Application on 7 June 2022.
  2. The applicants (whose submissions were led by the first applicant and endorsed by the second applicant) assert that their disqualifications which were made pursuant to s 103(3)(e) of the Constitution, being an amendment introduced by the Constitutional Amendment, is invalid, ineffective and unconstitutional. They fundamentally contend that on the proper interpretation and application of s 14 and s 110 of the Constitution, the Constitutional Amendment was not correctly certified and brought into law.
  3. Section 103(3)(e) states that a person convicted of an indictable offence committed after commencement of the Constitutional Amendment is not qualified to be a member or remain a member of the Parliament. The Constitutional Amendment came into effect on 25 June 2002 when it was certified by the Speaker.
  4. Mr Yali was convicted for the offence of rape committed in 2004 and sentenced to 12 years imprisonment. He has served out his sentence.
  5. Mr Parker was granted leave on 4 July 2022 to be added as second applicant. He was convicted of the offence of manslaughter committed on 5 June 2015 and sentenced to 7 years imprisonment on appeal, which term he also has served out.
  6. In brief, the applicants seek declarations that:

STANDING


  1. A person making application under s 18(1) of the Constitution must first be declared by the Court to have standing; Order 4, Rule 17 of the Supreme Court Rules.
  2. The applicants’ requests for a declaration as to standing are opposed by the interveners:

LEGAL PRINCIPLES


  1. It is settled law that the Supreme Court has discretion in deciding whether an applicant under s 18(1) of the Constitution has standing. The discretion is to be exercised in accordance with considerations referred to as the “Somare Rules” formulated in Re Petition of M T Somare [1981] PNGLR 265 and affirmed in many subsequent cases including Namah v Pato (2014) SC1304.
  2. In Namah v Pato (suprs) at [24], the Supreme Court stated:
    1. The applicant will have standing if he or she has a sufficient interest in the matter, which will be demonstrated if the applicant:
      • has personal interests or rights that are directly affected by the subject matter of the application; or
      • is a citizen who has a genuine concern for the subject matter of the application; or
      • is the holder of a public office, the functions of which relate to the subject matter of the application.
    2. The application must raise significant (not trivial, vexatious, hypothetical or irrelevant) constitutional issues;
    3. The applicant must not be a mere busybody meddling in other people’s affairs and must not be engaged in litigation for some improper motive, eg as a tactic of delay;
    4. The fact that there are other ways of having the constitutional issues determined by the Supreme Court does not mean that a person should be denied standing.

(Emphasis added)


ARGUMENTS BY INTERVENERS


  1. Two main arguments are advanced by the interveners in opposing the applicants’ request for declaration as to standing:
(1) That the applicants lack sufficient interest in the subject matter of the Application; and
(2) That the Application does not raise significant constitutional issues.
  1. We address these grounds.

SUFFICIENT INTEREST


  1. The interveners submit that the applicants have no interest or right that is affected by the subject matters of the Application. Any interest or right each of them may have had, ceased when he was disqualified from contesting the general elections.
  2. However, we consider otherwise.
  3. The subject matter of this Application is the proper interpretation and application of the Constitution, particularly as it relates to s 103(3)(e), which was inserted by the Constitutional Amendment. This provision concerns qualification for and disqualification of a person from being a member of the Parliament. The applicants dispute the validity of the Constitutional Amendment that added s 103(3)(e) to the Constitution.
  4. Mr Yali is a citizen who has genuine political interest. He was elected as member of the Parliament for Rai Coast Open in 2002. He contested the Madang Regional seat in the 2017 general elections but was unsuccessful. The applicant again nominated for the same seat in this year’s general elections.
  5. He was disqualified by the Electoral Commissioner as a candidate for the general elections following the decision of a five-member Supreme Court (Gavara-Nanu ACJ, Batari J, Cannings J, Manuhu J and David J) on 31 May 2022 in SC Ref No 6 of 2022 – Special Reference by the Attorney General under s 19 of the Constitution (“SC Ref 6/22”). The Court decided, among other things, that a person convicted of an indictable offence committed after 25 June 2002, is not qualified to be or remain a member of the Parliament and is not an eligible candidate for elections.
  6. SC Ref 6/22 was a refiling of an earlier s 19 Special Reference by the Attorney General, SC Ref No 2 of 2022 – Special Reference by the Attorney General under s 19 of the Constitution (“SC Ref 2/22”) which was dismissed for being incompetent. Mr Yali was an intervener in SC Ref 2/22 and he filed application to join as an intervener in SC Ref 6/22, but the Reference was heard before he could move his application.
  7. Mr Yali submits that his disqualification permanently denies him the right to stand for the Parliament or to hold other public office, and for this reason he filed the Application.
  8. We are satisfied that the first applicant has sufficient interest in the subject matter of the Application.
  9. Mr Parker is also a citizen, but his interest in politics appears limited and recent, reflected only by the fact that he nominated to contest the current general elections. While this may be the case, his disqualification also means he does not have the right to stand for the Parliament or to hold other public office in the future.
  10. We are also satisfied that the second applicant has sufficient interest in the subject matter of the Application.

SIGNIFICANT CONSTITUTIONAL ISSUES


  1. The interveners argue that no significant constitutional issues are raised in this Reference for the main reason that the question of the validity of the Constitutional Amendment was recently answered by the Supreme Court in SC Ref 6/22, whereby the Court, in its advisory opinion, held that the Constitutional Amendment was duly passed by the Parliament, properly certified by the Speaker pursuant to s 110 of the Constitution, and it came into operation on 25 June 2002.
  2. It is strongly urged by the interveners that the Application is in effect an appeal or review of the decision in SC Ref 6/22.

.

  1. The applicants submit to the contrary and contend that the relevant certificate of Speaker was not made under s 110 of the Constitution but under s 14 of the Constitution and that these provisions were not properly interpreted and applied by the Court in SC Ref 6/22, and these issues were not considered by the Court who would have reached a different conclusion had it done so.
  2. The provisions of s 14 that relevant to the present case are:
  3. Basically, s 110 states that the Speaker shall certify under the National Seal that a law has been made by the Parliament and comes into operation on the date of the certificate.
  4. A certificate in respect of a law altering the Constitution must state the matters set out in s 14(4) and s 14(5).
  5. The relevant certificated in this case reads:

Constitutional Amendment No. 24 – Electoral Reforms


Constitution


CERTIFCATE UNDER SECTION 14


I, BERNARD NAROKOBI, Speaker of the National Parliament, hereby certify that the requirements of Section 14(1), (2) and (3) of the Constitution were complied with in respect of the Constitutional Amendment No. 24 – Electoral Reforms and that the law was made by the National Parliament as follows:-


(a) The first vote was taken on 29 August 2001 when the number of seats in the National Parliament were 109 and those for the proposal were 77 and none voted against the proposal; and
(b) The second vote was taken on 23 January 2002 when the number of seats in the National Parliament were 109 and those for the proposal were 82 and none voted against the proposal.

(Signed under the national seal)

Speaker of the National Parliament

25 Jun 2002


  1. A copy of the certificate was before the Supreme Court in SCR 6 of 2022. Referring to the Constitutional Amendment No. 24 – Electoral Reforms, the Court noted that “it is an agreed and accepted fact that it was certified by the Speaker, then the Honourable Bernard M Narokobi MP, on 25 June 2002”. That is, the Court did not consider it an issue that the Speaker certified the Constitutional Amendment on 25 June 2002.
  2. In relation to the question as to whether the amending law came into force upon certification by the Speaker on 25 June 2002, the Court referred to the commencement clause in the preamble which states the law was “to come into operation on certification” and confirmed 25 June 2002 as the date the law commenced operation. The Court concluded that this was consistent with s 110.
  3. We note that the certificate of Speaker Narokobi is headed “CERTIFICATE UNDER SECTION 14” and the Court had regard to both this instrument and the Constitutional Amendment in deciding that the law was properly certified and that it came into force on 25 June 2002.
  4. It is clear too from reading the certificate that it sets out the matters required in s 14(4) and s 14(5) highlighted in paragraph 26 of this judgement.
  5. According to s 14(5) also, the certificate is conclusive evidence of the matters stated therein unless there is proof to the contrary.
  6. The Clerk of the Parliament has also produced evidence to show that the same form of certification by the Speaker has been applied for all constitutional amendments passed by the Parliament.
  7. In our respectful view, it is mere speculation to suggest that the Court failed to consider the interpretation and application of s 14.
  8. In the circumstances, we hold that the Application does not raise significant constitutional issues, and we find the question concerning whether the Constitutional Amendment was properly certified by the Speaker was answered by the Supreme Court in SC Ref 6/22.
  9. Accordingly, we find the applicants do not have standing in making the Application and we would dismiss it.

ABUSE OF PROCESS


  1. Clearly, the applicant was and is aggrieved by the decision in SC Ref 6/22.
  2. It is noteworthy that Mr Yali filed this s 18(1) application on 7 June 2022 - one week after the decision was delivered.
  3. With respect, it appears that the Application is really suggesting a slip or error by the Court, and this is akin to a review of the decision in SC Ref 6/22.
  4. In Special Reference by the Honourable Davis Steven (2020) SC2041, the Supreme Court stressed at [12-13] per Hartshorn J (with whom the other four Judges agreed):

12. There are no Constitutional or any other laws that have conferred other jurisdiction or power on the Supreme Court which affect or are superior to those conferred by s. 155 (2)(a) and (b). Section 19, for instance, pursuant to which this Special Reference is brought, confers jurisdiction to the Supreme Court to give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, but it does not confer a superior jurisdiction to that provided in s.155 (2)(a) and (b). Section 19 does not confer upon the Supreme Court the jurisdiction or power to hear an appeal or a review of final Supreme Court judgments and orders.


13. The Supreme Court does not have the jurisdiction to hear an appeal from another Supreme Court and does not have the inherent power to review all or any judicial acts of the Supreme Court... (Emphasis added)


  1. While the remarks were made in respect of a s 19 special reference, they are equally applicable to other actions in the Supreme Court including s 18(1) applications. These principles have been affirmed in many cases including Application by Joseph Kintau (2011) SC1125 and the recent case of Gadiki v Logae (2021) SC2102. An action that seeks a review by the Supreme Court of its own decision has been deemed to be an abuse of process.
  2. It is trite law that the Court has a duty to protect its process from abuse. In the case of Michael Newall Wilson v Clement Kuburam (2016) SC1489, Gavara-Nanu J expressed it this way at [33]:

It is an established principle of law that the Court has a duty to protect its processes from being abused. Where there is such abuse, the Court has the inherent power to deal with it. The Court can exercise this power even without an application being made by a party. This is necessary for the fair and proper administration of justice by the Court.
(Emphasis added)


  1. So even if we had decided in favour of the applicants on the question of standing, we would nevertheless dismiss the Application as an abuse of process.

UNDUE DELAY


  1. During submissions, the matter of the long delay in disputing the validity of the Constitutional Amendment was raised.
  2. Legal challenges to constitutional amendments may be dismissed for undue delay in their filing; Namah v O’Neill (2015) SC1617 (Injia CJ, Salika DCJ, Sakora J, Kirriwom J, Davani J). That case concerned four constitutional amendments relating to the conduct of proceedings in the Parliament. The first of them was made by the Parliament in 1991 and it amended s 145(4) of the Constitution, increasing the grace period allowed before a motion of no confidence in the government is moved from six (6) to eighteen (18) months. In respect of this law, Injia CJ (with whom the other four Judges agreed) stated at [72].

It has been challenged more than two decades after its enactment. The challenge to this amendment is far too belated. Parties' interest in actionable wrongs fade with passage of time. In ordinary civil suits, statutory time limits are prescribed for bringing an action. The Constitution and the Supreme Court Rules do not prescribe any time limit for bringing Constitutional claims such as a Constitutional claim under s 18(1) of the Constitution. There is however a general discretion in the Court to dismiss a claim that has been unduly delayed. If statutory time limitations were applicable for bringing Constitutional actions such time limits prescribed by statutes for actions in tort and contract, then by analogy, a three to six year time would be reasonable: see s 16 of Statue of Limitations 1988, s 16. In my view, the challenge to the first Constitutional amendment made to s 145(4) of the Constitution has been unduly delayed and it is dismissed for that reason.

(Emphasis added)


  1. With respect to Mr Yali, he has known or ought to have known of the Constitutional Amendment at least since 2018. The question of whether s 103(3)(e) applied to Mr Yali in the 2017 elections was considered by Higgins J in Yali v Yama (2018) N7145 and commented upon by Cannings J in Yama v Singirok (2020) SC1982. The first case concerned Mr Yali’s election petition arising from the 2017 general elections while the second case was a related election petition filed by another candidate who contested the same seat as Mr Yali.
  2. More critical is the glaring fact that it is now a little over twenty (20) years since the Constitutional Amendment No. 24 – Electoral Reforms came into force.
  3. The Constitution Amendment did not only amend s 103(3)(e) but it also inserted a new s 129(1)(a) of the Constitution. The latter amendment changed the person responsible for registering political parties and organizations who wish to support candidates for elections, from the Electoral Commissioner to “an appropriate body established by an Organic Law”. The Integrity of Political Parties & Candidates Commission is that body; see the Organic Law on the Integrity of Political Parties and Candidates.
  4. The Constitutional Amendment therefore concerned two important constitutional provisions that touch on the matter of integrity of candidates for elections. Since the amended provisions came into force, there have been four (4) general elections whereby these provisions have been relevantly applied.
  5. Noting that the period of delay in the present case is the same as in Namah v O’Neill (supra), namely twenty years, we would respectfully adopt and follow the course exercised by the Court in that instance, so we also dismiss this Application for being unduly delayed.

CONCLUSION


  1. It follows from the foregoing that we decline granting the applicants standing and we dismiss the Application.

ORDER

(1) The applicants’ request as to standing are refused.
(2) This proceeding is dismissed in its entirety.
(3) The applicants shall pay the interveners’ costs of and incidental to this Application.

_________________________________________________________
Young & Williams Lawyers: Lawyers for the First Applicant
Gileng & Co. Lawyers: Lawyers for the Second Applicant
Office of the Public Prosecutor: Lawyers for the First Intervener
Office of the Public Solicitor: Lawyers for the Second Intervener
Kawat Lawyers: Lawyers for the Third Intervener
Harvey Nii Lawyers: Lawyers for the Fourth Intervener
Office of the Solicitor-General: Lawyers for the Fifth Intervener


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