SC773

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCOS 4 of 2004

BETWEEN:

SIR PATO KAKARAYA
Plaintiff

AND:

THE NATIONAL PARLIAMENT
-	1st Defendant

AND:

HON. JEFFREY NAPE, Speaker of National Parliament
-	2nd Defendant

AND:

ANO PALA, Clerk of National Parliament
-	3rd Defendant

AND:

SIR PAULIUS MATANE, Governor-General
-	4th Defendant

AND:

THE NATIONAL EXECUTIVE COUNCIL
-	5th Defendant

AND:

THE RT. HON. SIR MICHAEL SOMARE, Prime Minister
-	6th Defendant

Waigani: Kapi,CJ, Los, Hinchliffe, Jalina & Kandakasi,JJ
2004:	 27th September, 17th December 2004

Constitutional Laws – National Parliament – Elections for Nomination of Governor-General – Rejection of proposals by the Clerk of Parliament, s 5 of the Organic Law on the Nomination of the Governor-General – Effect on the date fixed for election of Parliament’s nominee.

Constitutional Laws – Nomination of Governor-General – The meaning of "on the first sitting day of the Parliament after the vacancy occurs" – The meaning of "the need to elect a new Governor-General occurs" – Meaning of imminent vacancy" under s 3 of the Organic Law on the Nomination of the Governor-General.

Constitutional Law – Nomination of Governor-General – Power of the Speaker to call for Nomination under s 3 of the Organic Law on the Nomination of the Governor-General.

Cases cited:
No cases cited.

Counsel:
R. Leo, for the Plaintiff/Applicant
S. Reid, for the 1st & 2nd Defendants
R Williams, for the 3rd Defendant
L Henao, for the 4th Defendant
F Kuvi, for the 5th Defendant
S Singin, for the 6th Defendant

17th December 2004

BY THE COURT:	 By an originating summons filed in the Supreme Court on 28th June 2004 under s 18 (1) of the Constitution, Sir Pato Kakaraya (Plaintiff) seeks a declaration that the decision by the National Parliament (First Defendant) of its nominee of Sir Paulias Matane (Fourth Defendant) for appointment as Governor-General on 27th May 2004 was null and void in that it was not conducted in accordance with the Organic Law on the Nomination of the Governor-General (Organic Law).

The background to this litigation can be briefly described as follows. On the 19th November 1997, the Queen as the Head of State of Papua New Guinea appointed Sir Silas Atopare to be the Governor-General of the Independent State of Papua New Guinea. Under s 91 of the Constitution, the term of office is for a period of six (6) years. This term expired on 19 November 2003.

In anticipation of the imminent vacancy, the First Defendant on 18th September 2003 nominated Sir Albert Kipalan as its nominee for appointment as the next Governor-General of Papua New Guinea. 

This nomination was challenged in Court in SCOS No. 2 of 2003 (Unreported Judgment of the Supreme Court, SC721) and the Supreme Court on 21st November 2003 declared the nomination null and void on the grounds that the proposal forms failed to comply with the requirements of the Organic Law. The Court ordered the Clerk of Parliament (Third Defendant) to conduct and supervise a new election for the Parliament’s nominee for the office of the Governor-General.

In compliance with the directions of the Court, the First Defendant on 4th December 2003 conducted a new election and nominated the Plaintiff as the Parliament’s nominee for appointment as the Governor-general. 

This nomination was again challenged in Court. By the time the case came before the Supreme Court, the Plaintiff had already been appointed by the Queen under s 88 (i) of the Constitution. However, the Supreme Court held that non-compliance with requirement for proposal under the Organic Law rendered the appointment invalid and of no effect (see SCOS 3 of 2003, Unreported judgment of the Supreme Court dated 31st March 2004, SC728. The Court directed the Clerk of Parliament once again to conduct a new election of the Parliament’s nominee.

The First Defendant in accordance with the direction of the Court, nominated the Fourth Defendant as its nominee for appointment as Governor-General on 27th May 2004. He was sworn in as the Governor-General on 29th June 2004 in accordance with s 90 of the Constitution.

The Plaintiff filed an application before the Supreme Court on the eve of the swearing in of the Fourth Respondent, requesting the Supreme Court to review its own decision in the Plaintiff’s case on the basis that the Court misapprehended the law. This was an application to the Court to review its own decision under the slip-rule principle. The intended result was that if the Court made an error, it could set aside its earlier ruling and declare the Plaintiff as the validly nominated and appointed Governor-General. The Court dismissed the application on 18th June 2004 (SCR 23 of 2004, Unreported Judgment of the Supreme Court.

Subsequent to this decision, the Plaintiff filed the present proceeding. The relevant facts in this regard may be summarized as follows. On 27th April 2004, the Second Defendant announced in Parliament that, following the decision of the Supreme Court, there was still a vacancy in the office of Governor-General and that the Parliament must elect a nominee to fill the vacancy.

On the same date, the Second Defendant invited proposals from Members of Parliament and fixed 3rd May 2004, at 5.00 pm as the closing date and time for nominations to be received by the Third Defendant. The Second Defendant also fixed 11th May 2004, at 2.00 pm for the election to take place.

By 3rd May 2004, at 5.30 pm, the Third Defendant had received 4 proposals on behalf of:

Sir Pato Kakaraya
Sir Joseph Nombri 
Sir Albert Kipalan
Sir Paulias Matane. 

However, the Third Defendant rejected all four proposals because they were defective in accordance with the Organic Law.

Consequently, on 11th May 2004, the Second Defendant advised the Parliament that the Third Defendant had rejected all the proposals. The Second Defendant also advised the Parliament that under s 5 of the Organic Law, any of the nominees whose proposal forms were rejected had five (5) days in which to appeal against the rejection of the proposals under s 5 of the Organic Law. The Second Defendant further advised the Parliament that if no appeals are filed, he would call for fresh nominations on 13th May 2004. The five (5) days period expired midnight on 11th May 2004. No appeals were filed.

On 13th May 2004, the Second Defendant advised the Parliament that no appeals had been filed and called for new nominations and fixed the 20th May 2004, 5.00 pm as the deadline for receiving proposal forms and fixed 27th May 2004, 2:00 pm as the date and time for the Parliament to elect its nominee.

By 5:30 pm on 20th May 2004, the Third Defendant had received proposal forms for five (5) persons:

Sir Albert Kipalan
Sir Joseph Nombri
Mrs Nahau Rooney
Sir Pato Kakaraya
Sir Pailias Matane

The Third Defendant was satisfied that these proposals complied with the requirements of the Organic Law. On 27th May 2004, the Parliament proceeded to elect its nominee. For the present purposes, it is not necessary to set out the details of the elimination process in the election. When the final vote was conducted under the Organic Law, the Plaintiff polled 46 votes and the Fourth Defendant polled 50 votes. The Fourth Defendant was the Parliament’s nominee for appointment as the Governor-General.

The issues raised in this proceeding are different to the issues dealt with by the Supreme Court in the earlier cases referred to. The originating summons set out 2 grounds. The first relate to the breach of s 3 of the Organic Law (see Paragraph 1 (1) (i), (ii), (iii) and (iv)), and secondly, that the Third Defendant ought to have rejected the Fourth Defendant as an unqualified person under s 5 (c) of the Organic Law. 

However, at the hearing, counsel for the Plaintiff abandoned the second ground. The remaining ground raises four points but they can be summarized into two points as set out in the written submissions of counsel for the Plaintiff:

"(i)	the election of the Fourth Defendant on 27th May 2004 as the nominee for appointment as the next Governor-General is invalid in that it was held in contravention of s 3 of the Organic Law; and

(ii)	That the Second Defendant did not act within his powers under the Organic Law to call for fresh proposals for nominations on the 13th May 2004."

The proposition relied on the first ground in essence is that the Fourth Defendant was elected well outside the 10 sitting days period after the Second Defendant informed the Parliament of the vacancy in the office of the Governor-General on 27th April 2004.

In support of this ground, counsel for the Plaintiff relies on s 3 of the Organic Law. Counsel sought to argue the different circumstances under which the office of Governor-General may become vacant. He submits that there are two circumstances under which the office of the Governor-General may become vacant under this provision. The first is that where a "vacancy occurs", and the other is where there is "imminent vacancy". He also argues the circumstances under which "casual vacancy" may occur.

There is no dispute that the office of the Governor-General became vacant on 19th November 2003. And that the office remained vacant as a result of the various Supreme Court cases referred to earlier. There is also no dispute that when the Supreme Court on 23rd March 2004 declared the nomination of the Plaintiff invalid, the office of the Governor-General remained vacant which gave rise to the need to elect a new Governor-General.

Consistent with this, counsel for the Plaintiff concedes that the Second Defendant complied with s 3 (a) when on 27th April 2004 he notified the Parliament of the vacancy in the office of the Governor-General. The need to notify the Parliament arose as a result of the ruling by the Supreme Court that the nomination of the Plaintiff was invalid. The 27th April was the first sitting day of the Parliament following the ruling of the Supreme Court.

Counsel for the Plaintiff also consistently concedes that when the Second Defendant fixed the 11th May 2004, 2.00 pm as the date and time for the conduct of the ballot, that was in compliance with s 3 (b) of the Organic Law. That is to say the period between 27th April and 11th May was a period of 8 sitting days and therefore in compliance with s 3 (b) of the Organic Law in that it is a "date no later than 10 sittings days" after the 27th April 2004. We will return to consider the question as to the meaning of sitting days later on.

Counsel further concedes that the Second Defendant complied with s 3 © of the Organic Law when he called for nominations on 27th April 2004.

Had the election proceeded on 11th May as fixed by the Second Defendant, counsel for the Plaintiff concedes that there would have been compliance with s 3 of the Organic Law.

However, the ballot did not proceed on the date fixed on the basis that there were no valid proposals for nomination as the Third Defendant had rejected all proposal forms for not complying with the Organic Law on 3rd May 2004.

The question then arises; what happens in these circumstances? Counsel for the Plaintiff submits that the original date fixed on 11th May 2004 remained the valid date and the Parliament ought to have called for new nominations before the 11th May and allow the election to take place on 11th May 2004. He submits that when the election was not held on the 11th May, the Second Defendant had no power to fix a new date (27th May). He further submits that 27th May was more than 10 sitting days from 27th April and therefore contrary to s 3 of the Organic Law.

On the other hand, counsel for the Defendants submit that the election fixed for the 11th May could not proceed as the Third Defendant had rejected all the proposals. They submit that in the circumstances, Second Defendant had power to call for new nominations and fix a new date for the election of the Governor-General. They submit that 10 sitting days has to be calculated from the 13th May and not the 27th April. They submit that what happened in this case falls within the ambit of the Organic Law and therefore valid.

There can be no question that the Third Defendant has discretion to reject any proposal form under s 5 of the Organic Law. Counsel for the Plaintiff concedes this in his written submissions:

"Under Section 5 the Clerk ‘must’(not may) (after the Supreme Court decision in SC OS No. 2 of 2003, SC721 interpreted it to be mandatory leaving no discretion with the Clerk) reject proposal of nomination forms that are defective, etc; and in the case the Clerk rejected all nomination forms submitted to him pursuant to the notification to Parliament of 27th April 2004.

An aggrieved person has to appeal within five (5) days and an election shall not be held until all appeals are heard." 

We consider that when the Third Defendant rejected all the proposals, the original date fixed for the election of the Governor-General was affected and the election could not take place. For one thing, the Parliament could not conduct any ballot on 11th May without any proposals before it.

Second, the rejection by the Third Defendant of proposals forms brings into effect s 5 of the Organic Law. In the present case, the Second Defendant had to allow a period of 5 days to enable any of the candidates to appeal to the National Court. He advised the Parliament accordingly on 11th May. That period expired at midnight on 11th May 2004. The Second Defendant could not call for fresh nominations on 11th May until the appeal period expired at midnight. In the circumstances, the election fixed for 11th May was affected by operation of s 5 of the Organic Law.

In order to allow for any possible appeals, the Second Defendant allowed for the period of 5 days to run and fixed the 13th May 2004 to consider taking necessary steps (fresh nominations and the date for election of the Parliament’s nominee) if the need arises.

When no appeals were filed, the Second Defendant on 13th May 2004 called for new nominations and fixed 27th May for election of the Governor-General. The question is; whether the Second Defendant has any power to call for fresh nominations and fix a new date and time for close of nominations, and fix new date and time for election of the Parliament’s nominee? 

This requires consideration of s 3 and 5 of the Organic Law. We set them out as follows:

"3.	Nominations.

Whenever the office of Governor-General is vacant, or is about to become vacant, the Speaker shall-

(a)	on the first sitting day of the Parliament after the vacancy occurs, or the need to elect a new Governor-General occurs, as the case may be, notify the members of the Parliament of the vacancy or of the imminent vacancy; and

(b)	at the same time fix a date, being a date not later than 10 sitting days after the day referred to in paragraph (a), for the conduct of a ballot to decide the person to be nominated by the Parliament to fill the vacant office; and

(c)	call for nominations to fill the vacancy."

"5.	Rejection of proposals.

(1)	The Clerk may reject a proposal for nomination where-

(a)	the proposal is not in the prescribed form; or

(b)	the proposal is not signed by at least 15 members of the Parliament; or

(c)	he has reasonable cause to believe, and does believe, that the person nominated is not qualified for appointment as the Governor-General.

(2)	Where the Clerk rejects a proposal for nomination he shall immediately inform the Speaker, the proposer and the person proposed of his reasons for so doing.

(3)	A person aggrieved by a decision of the Clerk may, within five days after the decision, appeal against the decision to the National Court.

(4)	An election under this Law shall not be held until all appeals under this section have been dealt with."

Where there is an appeal against a determination by the Third Defendant, the election is postponed until the appeal is determined under s 5 (4) of the Organic Law.

However, where all proposals are rejected and there is no appeal as in the present case, election cannot take place. Counsel for the Plaintiff submits that when the 11th May was allowed to expire, there is no provision under the Organic Law for any fresh nominations and election. The election that took place on 27th May is invalid because as counsel for the Plaintiff submits, it exceeded the 10 days period from 27th April and that the Second Defendant had no power to call for fresh nominations and fix a new date for an election. If this submission is accepted, the vacancy in the office of the Governor-General would continue and there is no way of filling the vacancy. The practical result is that there would be no Governor-General.

The question is whether the circumstances in the present case come within the terms of s 3 (a) of the Organic Law? There are three situations under which the Second Defendant may take steps to inform the Members of Parliament, call for nominations and conduct the election of the Parliament’s nominee under s 3 of the Organic Law.

The first is where the "office of Governor-General is vacant" or "after the vacancy occurs". The office became vacant on 19th November 2003. It could be argued that the Plaintiff was nominated after "the office of Governor-General is vacant" or, "after the vacancy occurs".

The second circumstance referred to under s 3 is "the need to elect a Governor-General occurs". This is expressed differently to the first circumstance and covers different situations. This view is confirmed by the use of the words "as the case may be" immediately following the two different situations. This circumstance is expressed in wide terms: "the need to elect a Governor-General occurs". We will return to discuss the meaning of these words in the context of the present case.

The third is where there is an "imminent vacancy". The election of Sir Albert Kipalan was conducted in September in anticipation of the vacancy occurring on 19th November 2003.

We are of the opinion that when all proposals were rejected by the Third Defendant, no election could take place. The vacancy in the office of the Governor-General continued and the "need to elect a new Governor-General occurs". These words under s 3 of the Organic Law are wide enough to cover the circumstances in the present case. That is to say when the process of election could no longer go ahead because of lack of any proposals forms, "the need to elect the Governor-General occurs".

The situation in the present case arose out of the exercise of discretion given to the Third Defendant under s 5 of the Organic Law. The Second Defendant was entitled to inform the Parliament of the need to elect the Governor-General and call for new nominations and fix a date for the election of the Parliament’s nominee under s 3 of the Organic Law.

The only question that remains to be considered is whether the period fixed for election of the Governor-General on 27th May by the Second Defendant is a "date not later than 10 sitting days" after the date when the Second Defendant informed the Parliament of the need to elect a Governor-General occurs.

Counsel for the Plaintiff submits that "10 sitting days" refer to the number of sitting days from the date on which the Second Defendant informs the members of the Parliament of the need to elect a new Governor-General occurs. He submits that the words "sitting days" are used in this context to refer to the designated sitting days during the session of the Parliament. In the present case, he submits that it should be calculated from the 27th April 2004, the original date on which the Second Defendant called for nominations following the ruling of the Supreme Court on 31st March 2004.

Counsel for the Defendants submit that "sitting days" should be interpreted consistently with previous decisions of the Court so that it refers to the days when the Parliament actually sits. In the present case, the Parliament actually sat for less than 10 days. On this calculation, the Fourth Defendant was elected within a period less than 10 actual sitting days.

Alternatively, counsel for the Defendants submit that if the sitting days refer to the potential sitting days in a session of the Parliament, in the present case, the election on the 27th May was held within 10 sitting days. They submit that 10 days should be calculated from the 13th May and not from 27th April. 

We consider that "10 sitting days" is to be interpreted within the context of the election of the Governor-General. When the Second Defendant is considering the date for election of the Governor-General, the Parliament is in session for that purpose, he has to fix a date for the election. In this context, whether or not the Parliament sits for other business has no relevance to the election of the Governor-General. What is important is that the election of Governor-General is conducted no later than the 10 sitting days. This period is allowed for Members to consider proposing candidates and lobby support for the election of the nominee.

The election must be held on the day fixed by the Second Defendant. This is subject to the operation of s 5 of the Organic Law where the Second Defendant may reject a proposal form and the matter is appealed to the National Court. The election is conducted after the appeal is determined (s 5 of the Organic Law).

Where all proposal forms are rejected and there is no appeal, not only the election cannot take place on the day fixed but this results in the "need to elect a new Governor-General occurs".

We consider that where there are no proposal forms for election, the original dates fixed are no longer valid because the "need to elect a new Governor-General occurs" and the Second Defendant is entitled to call for fresh dates for nomination and election. The 10 sitting days in those circumstances is to be calculated from the fresh date of notification of the Parliament which arises as a result of the need to elect a new Governor-General. In the present case, the new date when the Parliament was informed of the need to have an election was the 13th May. The original date on which the Second Defendant informed the Parliament of the vacancy on 27th April is no longer valid for purposes of calculating the 10 sitting days. This is consistent with the calculation of the sitting days in the previous elections. The original date when the Parliament was initially advised in 2003 is not relevant. The date is calculated from the fresh date when the need to elect a new Governor-General arises. What happened in this case falls within the meaning of s 3 of the Organic Law as interpreted by this Court.

We do not find any merit in the submissions put to us by counsel for the Plaintiff and dismiss the originating summons with costs to the Defendants.
_______________________________________________________________________

Lawyers for the Plaintiff/Applicant: 		Leo Lawyers
Lawyers for the 1st & 2nd Defendants: 	Pato Lawyers
Lawyers for the 3rd Defendant: 		Nongorr & Associates
Lawyers for the 4the Defendant: 		Henao’s Lawyers 
Lawyer for the 5th Defendant: 	 	Solicitor-General
Lawyer for the 6th Defendant: 		S. Singin