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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCCA NO 3 OF 2024
IN THE MATTER OF AN APPLICATION
PURSUANT TO CONSTITUTION, SECTION 18(1)
THE HONOURABLE DOUGLAS TOMURIESA MP
Applicant
Waigani: Salika CJ, Gavara-Nanu J,
Mogish J, Cannings J, Hartshorn J
2024: 1st & 5th August
CONSTITUTIONAL LAW – practice and procedure – objection to competency of application under Constitution, s 18(1) (original interpretative jurisdiction of the Supreme Court) – whether application based on alleged breach of procedures prescribed for the Parliament and its committees – whether the question of whether there has been compliance with parliamentary procedures is justiciable – Constitution, s134 (proceedings non-justiciable).
The applicant filed an application in the Supreme Court under s 18(1) of the Constitution seeking declarations and orders as to interpretation and application of provisions of the Constitution regarding a notice of motion of no confidence in the Prime Minister that he submitted to the Speaker of Parliament on 29 May 2024, which was not cleared by the Private Business Committee for tabling; instead the Parliament on 5 June 2024 adjourned to 3 September 2024. The second intervener, the Attorney-General, filed an amended objection to competency of the application, relying on seven grounds of objection: (1) that the application is non-compliant with Order 4, rules 1 and 3 and form 1 of the Supreme Court Rules as it does not request a proper interpretation of any Constitutional Law; (2) that the application seeks interpretations of the Standing Orders of the National Parliament, which are not Constitutional Laws; (3) that the application fails to plead material facts; (4) that the application is an exercise in futility as the primary decision it seeks to impugn is the decision of the Private Business Committee of the Parliament to reject the notice of motion of no confidence that was submitted on 29 May 2024, which decision has been superseded by other events; (5) that the application is based on alleged breaches of the Standing Orders by the Private Business Committee and the Parliament, but such alleged breaches are non-justiciable under s 134 of the Constitution; (6) that the application pleads factual matters when it only is required to plead the proper interpretation and application of provisions of the Constitutional Laws; (7) that the application ignored the fact that the Private Business Committee’s decision to reject the notice of motion was superseded by a decision of the Speaker to overrule the Committee’s decision and the fact that the Parliament decided to overrule the Speaker’s decision and did so in the absence of the Opposition members of the Parliament, led by the applicant, who walked out of the chamber and denied themselves the opportunity of debating on the matters before the Parliament. The applicant did not respond to the merits of the grounds of objection but argued that the amended notice of objection to competency was itself incompetent for being filed late and was an abuse of process as it should have been filed and argued before the Court’s declaration of 28 June 2024 that the applicant had standing to make the application.
Held:
Per Salika CJ, Mogish J & Cannings J (the majority):
(1) The amended objection to competency was not filed late and there was no rule of practice or procedure requiring it to be heard and determined prior to the declaration as to standing. It was properly before the Court.
(2) Five of the grounds of objection (Nos 1, 3, 4, 6 and 7) refused.
(3) Two grounds of objection (Nos 2 and 5) upheld and the application is dismissed, with costs.
Per Gavara-Nanu J (agreeing with the order proposed by the majority but adding comments):
(4) The objection to competency should be upheld as: the pleadings rely extensively on alleged breaches of the Standing Orders of the National Parliament, which is not a Constitutional Law; the application places undue reliance on the decision of the Supreme Court in Polye v Zurenuoc (2016) SC2039, offending against the cardinal principle that each case is to be decided on its own merits; and the pleadings omit material facts, in particular that the Opposition members walked out of the Parliament during debate on the question of adjournment of the Parliament, and does adhere to Order 4 rule 3(d) of the Supreme Court Rules, which requires that an application under s 18(1) of the Constitution “state the facts out of which the request arises”.
Per Hartshorn J (dissenting):
(5) The objection to competency is an abuse of process in that on the authority of Application by Hon Peter O’Neill MP (2023) SC2400, in an application pursuant to s 18(1) Constitution, issues of competency ought to be raised at the hearing on standing and not after a declaration on standing has been ordered. Here, a declaration has been made that the applicant has standing. To entertain and uphold an objection to competency at this stage would be to allow a review of the final decision of this Court on standing, which it has no power to do. The objection to competency ought to be refused and the application should proceed to trial.
Cases Cited
The following cases are cited in the judgment:
Amet v Yama [2010] 2 PNGLR 87
Application by Hon Douglas Tomuriesa MP (2024) SC2594
Application by Hon Peter O’Neill MP (2020) SC2043
Application by Hon Peter O’Neill MP (2023) SC2400
Application by Hon Belden Norman Namah MP (2020) SC2040
Haiveta v Wingti No 3 [1994] PNGLR 197
Polye v Zurenuoc (2016) SC2039
Re Election of Governor-General (No 1) (2003) SC721
Re Election of Governor-General (No 2) (2004) SC728
Re Election of Governor-General (No 3) (2004) SC752
Re Election of Governor-General (No 4) (2004) SC773
SC Ref No 1 of 2012, Re Prime Minister and NEC Act [2012] 1 PNGLR 74
SC Ref No 3 of 1999, Reference by Ombudsman Commission re Sitting Days of the Parliament [1999] PNGLR 285
SC Ref No 3 of 2000, Reference by Head of State on advice of National Executive Council re Sitting Days of the Parliament (2002) SC722
SC Ref No 3 of 2011, Reference by East Sepik Provincial Executive [2011] 2 PNGLR 126
SC Ref No 4 of 2010, Reference by Morobe Provincial Executive re re-election of Governor-General [2010] 1 PNGLR 335
Counsel
G J Sheppard & G Kult, for the Applicant
K R Kawat, for the First Intervener, the Speaker of the National Parliament
L A Jurth & D Mel, for the Second Intervener, the Attorney-General
5th August 2024
1. SALIKA CJ, MOGISH J & CANNINGS J: This is a ruling on an amended objection 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 Douglas Tomuriesa MP, Leader of the Opposition, on 10 June 2024. He applies for declarations and orders as to interpretation and application of provisions of the Constitution regarding a notice of motion of no confidence in the Prime Minister that he submitted to the Speaker of the National Parliament on 29 May 2024, which was not cleared by the Private Business Committee for tabling; instead the Parliament on 5 June 2024 adjourned to 3 September 2024.
3. He argues that the actions of the Parliament were in breach of ss 111 (right to introduce bills etc), 135 (questions as to membership etc) and 145 (motions of no confidence) of the Constitution and that the Court should order under s 155(4) of the Constitution the Clerk of the Parliament to place the notice of motion of no confidence as the first item of business on the next sitting day of the Parliament and the Speaker to recall the Parliament within seven days for the motion of no confidence to be voted upon.
4. The Speaker of the National Parliament, the Honourable Job Pomat MP, and the Attorney-General, the Honourable Pila Niningi MP, were granted leave on 18 June 2024 to join the proceedings as first and second intervener respectively.
5. The second intervener on 26 June 2024 filed a notice of objection to competency of the application and on 25 July 2024 filed an amended notice of objection to competency of the application. We have heard argument on the amended notice of objection to competency of the application and are now ruling on it.
GROUNDS OF OBJECTION TO COMPETENCY
6. Seven grounds of objection are raised:
(1) the application is non-compliant with Order 4, rules 1, 3 and form 1 of the Supreme Court Rules as it does not request a proper interpretation of any Constitutional Law;
(2) the application seeks interpretations of the Standing Orders of the National Parliament, which are not Constitutional Laws;
(3) the application fails to plead material facts;
(4) the application is an exercise in futility as the primary decision it seeks to impugn is the decision of the Private Business Committee of the Parliament to reject the notice of motion of no confidence that was submitted on 29 May 2024, which decision has been superseded by other events;
(5) the application is based on alleged breaches of the Standing Orders by the Private Business Committee and the Parliament, but such alleged breaches are non-justiciable under s 134 of the Constitution;
(6) the application pleads factual matters when it only is required to plead the proper interpretation and application of provisions of the Constitutional Laws;
(7) the application ignores the fact that the Private Business Committee’s decision to reject the notice of motion was superseded by a decision of the Speaker to overrule the Committee’s decision and the fact that the Parliament decided to overrule the Speaker’s decision and did so in the absence of the Opposition members of the Parliament, led by the applicant, who walked out of the chamber and denied themselves the opportunity of debating the matters before the Parliament.
APPLICANT’S PRELIMINARY POINTS
7. The applicant did not respond to the merits of the grounds of objection but argued that the amended notice of objection to competency was itself incompetent for being filed late and was an abuse of process as it should have been filed and argued before the Court’s declaration of 28 June 2024 that the applicant had standing to make the application.
8. We deal first with these preliminary points. We find that the original notice of objection to competency of the application was filed within eight days after the second intervener was granted leave and was filed within the time prescribed by the Supreme Court Rules. We note that leave was not sought to file an amended notice of objection to competency of the application, which should have been sought. Otherwise, the amended notice of objection is compliant with the Rules, but even if it were not, we could still entertain the grounds and, if they are good grounds, uphold the objection and dismiss the proceedings. The Supreme Court emphasised in Amet v Yama [2010] 2 PNGLR 87 that the issue of jurisdiction can be raised at any time. An objection to competency is a challenge to the jurisdiction of the Court, and the Court has an inherent power to itself question whether a party has validly invoked its jurisdiction.
9. The applicant’s second preliminary point that any objections to competency should have been heard and determined prior to the declaration as to standing on 28 June 2024 is based on comments of the Supreme Court in Application by O’Neill (2023) SC2400. However, at the hearing on the question of standing on 27 June 2024 this Court, as presently constituted, clearly indicated that any objections to competency would be heard after the ruling on the question of standing.
10. We note the suggestions made by the members of the Court in Application by O’Neill (2023) SC2400. However, we decided not to follow those suggestions in this case. We note there is no rule of practice or procedure requiring objections to competency of a s 18(1) Constitution application to be heard and determined prior to the declaration as to standing.
11. The amended notice of objection to competency filed 25 July 2024 is properly before the Court.
FIVE GROUNDS OF OBJECTION REFUSED
12. We find no substance in five of the grounds of objection
13. As to (1), we are not persuaded that the application is non-compliant with Order 4, rules 1 and 3 and form 1 of the Supreme Court Rules. The question of whether the applicant requests a “proper” interpretation of the Constitutional Laws can only be determined at the hearing of the application. The alleged failure to seek a proper interpretation is not a matter going to the jurisdiction of the Court. Ground 1 is refused.
14. As to (3), the question of whether the application fails to plead material facts can only be determined at the hearing of the application. The alleged failure to plead material facts is not a matter going to the jurisdiction of the Court. Ground 3 is refused.
15. As to (4), the question of whether the application is an exercise in futility is not a matter going to the jurisdiction of the Court. We appreciate the second intervener’s argument that the primary decision the applicant seeks to impugn is the decision of the Private Business Committee of the Parliament to reject the notice of motion of no confidence that was submitted on 29 May 2024, and that that decision has been superseded by other events, namely the Speaker’s overruling of the Private Business Committee’s decision and the overruling by the Parliament, through a motion of dissension, of the Speaker’s decision.
16. However, those are matters of fact that are not before the Court. We also appreciate that affidavits have been filed by the interveners that depose to the full facts of the case. However, those affidavits have not been tendered and are not in evidence and cannot be relied on in hearing and determining an objection to competency. Ground 4 is refused.
17. As to (6), we are not persuaded that the application is non-compliant with the Supreme Court Rules due to it pleading extraneous factual matters when it only is required to plead the proper interpretation and application of provisions of the Constitutional Laws. Ground 6 is refused.
18. As to (7), we repeat our reasons for refusing ground 4. The allegation that the application ignores the fact that the Private Business Committee’s decision to reject the notice of motion was superseded by a decision of the Speaker to overrule the Committee’s decision and the fact that the Parliament decided to overrule the Speaker’s decision and did so in the absence of the Opposition members of the Parliament, led by the applicant, who walked out of the chamber and denied themselves the opportunity of debating the matters before the Parliament, are matters of fact that are not before us. Ground 7 is refused.
19. In summary we refuse grounds of objection 1, 3, 4, 6 and 7.
TWO GROUNDS OF OBJECTION UPHELD
20. Grounds of objection 2 and 5 highlight that the application seeks interpretations of the Standing Orders of the National Parliament, which are not Constitutional Laws, and is based on alleged breaches of the Standing Orders by the Private Business Committee and the Parliament. It is argued that such alleged breaches are non-justiciable under s 134 of the Constitution.
21. It is clear that the Standing Orders are not Constitutional Laws. The only way in which interpretation and application of the Standing Orders could properly be made the subject of a s 18(1) Constitution application is if there were a specific provision of a Constitutional Law, making compliance with the Standing Orders necessary for some process or decision to be rendered constitutional.
22. There are many cases that stand for the proposition that if there are matters of parliamentary procedure specifically provided for in a Constitutional Law, questions of compliance with such procedures are not subject to s 134. For example:
23. There is an argument that s 145 of the Constitution is a provision that sets out the procedures required to be followed by the Parliament in the processing of a motion of no confidence in the Prime Minister. Section 145 states:
(1) For the purposes of Sections 142 (the Prime Minister) and 144 (other Ministers), a motion of no confidence is a motion—
(a) that is expressed to be a motion of no confidence in the Prime Minister, the Ministry or a Minister, as the case may be; and
(b) of which not less than one week's notice, signed by a number of members of the Parliament being not less than one-tenth of the total number of seats in the Parliament, has been given in accordance with the Standing Orders of the Parliament [emphasis added].
(2) A motion of no confidence in the Prime Minister or the Ministry—
(a) moved during the first four years of the life of Parliament shall not be allowed unless it nominates the next Prime Minister; and
(b) moved within 12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election shall not be allowed if it nominates the next Prime Minister.
(3) A motion of no confidence in the Prime Minister or the Ministry moved in accordance with Subsection (2)(a) may not be amended in respect of the name of the person nominated as the next Prime Minister except by substituting the name of some other person.
24. We note that s 145(1)(b) speaks of a motion of no confidence in the Prime Minister of which notice “has been given in accordance with the Standing Orders”. That is the only reference to the Standing Orders.
25. The applicant’s case, pleaded in the application filed on 10 June 2024, is that the Private Business Committee and the Parliament failed to comply with the constitutional process prescribed by s 145, which is argued to be: that the Private Business Committee must, in accordance with s 130 of the Standing Orders, check compliance with five requirements, two of which are specifically set out in ss 145(1)(a) and 145(2)(a) of the Constitution and three of which are set out in s 130 of the Standing Orders.
26. We uphold the second intervener’s argument that the three procedural requirements of the Standing Orders allegedly breached by the Private Business Committee are not specifically provided for by s 145 of the Constitution. We are not authorised to hear argument on the question of whether those requirements of the Standing Orders have been breached. Such questions are non-justiciable under s 134 of the Constitution, which states:
Except as is specifically provided by a Constitutional Law, the question, whether the procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable, and a certificate by the Speaker under Section 110 (certification as to making of laws) is conclusive as to the matters required to be set out in it.
27. Section 134 advances two separate propositions:
28. Each of those propositions is subject to the qualifying phrase “Except as is specifically provided by a Constitutional Law”.
29. Only the first proposition is relevant in the present case: that the question, whether the procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable.
30. “Non-justiciable” is defined in Schedule 1.7 (“non-justiciable”) of the Constitution:
Where a Constitutional Law declares a question to be non-justiciable, the question may not be heard or determined by any court or tribunal, but nothing in this section limits the jurisdiction of the Ombudsman Commission or of any other tribunal established for the purposes of Division III.2 (leadership code).
31. That means that, subject to the qualification provided by the section itself, s 134 of the Constitution is saying that questions as to whether the procedures prescribed for the Parliament have been complied with may not be heard or determined by any court, and that includes the Supreme Court (Application by the Honourable Belden Norman Namah MP (2020) SC2040).
32. We are aware that the decision of this Court in Polye v Zurenuoc (2016) SC2039 appears to take a different approach. The Court found that the procedures in s 130 of the Standing Orders were incorporated into s 145. We are not bound by that decision and note that the bench comprised only three Judges. It is to be confined to its own peculiar facts and circumstances. With respect, we find that case is not applicable to determination of the objection to competency that is before us.
33. The applicant’s case is based on the proposition that the requirements of the Standing Orders as to how and when a motion of no confidence in the Prime Minister is to be tabled in the Parliament and voted on by the Parliament are based on s 145 of the Constitution. However, we uphold the second intervener’s argument that that is not the case. Section 145 contains no specific procedures as to how and within what timeframe a motion of no confidence is to be processed by the Private Business Committee or by the Parliament.
40. The applicant’s case is founded on alleged breaches of the Standing Orders. The application cannot succeed unless the Court hears evidence and considers argument on and determines – to invoke the words of s 134 of the Constitution – “the question of whether the procedures prescribed for the Parliament or its committees have been complied with”. The procedures that the applicant argues were breached are not – again invoking the words of s 134 – “specifically provided for by a Constitutional Law”. The question of whether the procedures prescribed by the Standing Orders that the applicant alleges were breached, is non-justiciable.
41. The Court has no jurisdiction to deal with the question. For that reason we uphold grounds of objection 2 and 5.
CONCLUSION
42. We have refused five of the grounds of objection to competency but upheld two of the grounds of objection to competency. We are satisfied that the Court has no jurisdiction to entertain the application. The objection to competency is upheld and the proceedings will be dismissed. Costs will follow the event.
43. GAVARA-NANU J: I have read the judgment by the majority of this Court and I respectfully agree with the conclusions they reached. I only want to add a few comments of my own.
44. In my respectful opinion, the manner in which the application was pleaded and the matters pleaded in the application are relevant to the issue of competency of the application. They are relevant to the jurisdiction of this Court in determining the competency of the application. In this regard, I note that the application is pleaded in a way it asks this Court to consider and interpret ss 11, 111, 135 and 145(4) together with the Standing Orders. These pleadings appear in paragraph 3(a) of the application which appears to constitute ground 1 of the application. I find this ground overarching and renders the whole application incompetent, in so far as it asks the Court to interpret Standing Orders together with the constitutional provisions mentioned above. The Standing Orders are not constitutional provisions. Under s 18(1) of the Constitution, the Court’s power is limited to interpreting constitutional provisions only. It is to be noted that the succeeding paragraphs of the application continue to refer this Court to various Standing Orders for the purposes of interpreting the above-mentioned provisions of the Constitution. To my mind, such pleadings render the whole application incompetent.
45. I accept submissions by counsel for the second intervener that the application appears to be based on the decision in Polye v Zurenuoc (2016) SC2039, thus in my view, and as submitted by the counsel for the second intervener this Court is basically being asked to follow Polye v Zurenuoc (supra) and decide this case according to that case. That in my opinion offends against the cardinal principle that each case must be decided on its own merits. The manner in which the application is drafted and the complete reliance placed on Polye v Zurenuoc (supra) by the applicant leaves no room for this Court to exercise its own discretion on matters raised before it.
46. I also find the application offends against Order 4 rule 3(d) of the Supreme Court Rules (as amended). This provision relates to the requirement that an application under s 18(1) of the Constitution must plead – “the facts out of which the request arises” or arose. This is a mandatory requirement. Looking at the submissions by the counsel for the first and second interveners, and the affidavit of the first intervener the Opposition members walked out of the Parliament during debate in protest, that has not been pleaded in the application. It is a matter that has been raised before this Court both in submissions by counsel and in the affidavit of the first intervener. Thus, it is a matter this Court cannot ignore, and it is a relevant matter the Court has to consider in the exercise of its inherent power, in so far as it not being pleaded in the application. In this regard, and by that vital omission in the pleadings, the applicant has also failed to properly invoke the powers of this Court. The conduct of the Opposition in that regard is not a matter of Parliamentary privilege that can be protected or shielded by s 115 of the Constitution, nor is it protected or shielded by the Standing Orders from being considered by this Court. For these reasons, I would uphold the objection to competency in its entirety. I agree that costs should follow the event.
47. HARTSHORN J: Before this Court is the amended notice of objection to competency (objection to competency) of the second intervener.
48. The substantive applicant submits that the objection to competency is an abuse of process on two grounds, one of which is that on the authority of Application by Hon Peter O’Neill MP (2023) SC2400, in an application pursuant to s 18(1) Constitution, issues of competency ought to be raised at the hearing on standing and not after a declaration on standing has been ordered.
49. The second intervener submits that at the hearing to determine the standing of the substantive applicant, the second intervener attempted to raise issues of competency before the Court but was refused on the basis that such issues could be heard at a later date.
50. In Application by Peter O’Neill (supra), the Court considered two objections to competency and an application to dismiss after the full Court had declared that the substantive applicant had standing. The Court refused the two objections to competency and the application to dismiss as the Court stated it did not have the power or jurisdiction to review a final order of the Supreme Court. At [39], Hartshorn J and Makail J, with whom the other Judges agreed, stated:
A further consideration is that when this Court makes a declaration that an applicant has standing to make an application under s 18(1) Constitution, it is making a determination on substantive relief sought. A declaration that an applicant has standing is a final order of the Court: Application by Hon Powes Parkop (2022) SC2268, [9] – [12]. As a declaration that an applicant has standing is a final order of the Supreme Court, the Supreme Court does not have the power or jurisdiction to review such an order: Special Reference by the Hon Davis Steven (2020) SC2041 at [12] – [15]. To question the competency of an application made under s 18(1) Constitution after the Supreme Court has made a final order declaring that the applicant has standing to make the application, when the question of whether a significant constitutional issue and by implication its competency, is a factor to be considered by the Supreme Court in its determination of whether the applicant has standing, is effectively requesting the Supreme Court to review its final order.
51. In the judgment of this Court on standing, Application by Hon Douglas Tomuriesa MP (2024) SC2594, the Court did not confine its consideration to the standing of the substantive applicant per se. It referred to the Somare rules and amongst others, significant constitutional issues. The Court also referred to submissions of competency made by counsel for the second intervener as being relevant if the application proceeds to trial.
52. For this Court to consider issues of competency now in the circumstances similar to those referred to in [39] Application by Peter O’Neill (supra), in my view, is an abuse of process as effectively this Court is being requested to review its final decision on standing.
53. The issues sought to be raised by the second intervener in the objection to competency may be raised at the trial of the substantive application. For the above reasons, the objection to competency should be dismissed as an abuse of process.
ORDER
54. By majority (Salika CJ, Gavara-Nanu J, Mogish J, Cannings J; Hartshorn J dissenting):
(1) The objection to competency of the proceedings, made by the amended notice of objection to competency filed on 25 July 2024, is upheld.
(2) The proceedings are entirely dismissed.
(3) Subject to specific costs orders made in the course of the proceedings, the applicant shall pay the second intervener’s costs of the proceedings on a party-party basis, which shall if not agreed be taxed.
_____________________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant
Kawat Lawyers: Lawyers for the First Intervener
Mel & Hennry Lawyers: Lawyers for the Second Intervener
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