SC1089

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SC REF NO 4 0F 2010

SPECIAL REFERENCE
PURSUANT TO CONSTITUTION, SECTION 19

IN THE MATTER OF RE-ELECTION OF THE GOVERNOR-GENERAL, SIR PAULIAS MATANE, FOR THE SECOND TERM AND INTERPRETATION OF SECTIONS 87(5) AND 88 OF THE CONSTITUTION

REFERENCE BY
THE MOROBE PROVINCIAL EXECUTIVE

Waigani: Sakora J, Batari J,
Cannings J, Manuhu J, Gabi J

2010: 21, 22 December

CONSTITUTIONAL LAW – Special Reference under Constitution, Section 19 – slip rule application made after opinion handed down by Supreme Court – identity of applicant – whether made by a proper and authorised party – merits of application. 

Six days after the Supreme Court handed down its opinion on questions of constitutional interpretation and application referred to it under Section 19 of the Constitution, one of the interveners in the reference made an application under the slip rule for variation of one of the orders made by the Court.

Held:

(1)	The application was not properly before the Court as it was not authorised by the intervener – the Parliament – in whose name it was brought, and not signed by the responsible officer on behalf of the Parliament.

(2)	As no attempt was made to amend or withdraw the application and replace it with another application (eg by the person – the Deputy Speaker – claiming difficulty in complying with the Court's order), the application before the Court was incompetent and for that reason alone must be dismissed.

(3)	It was not appropriate for the Court to give directions to any of the persons claiming difficulty in complying with the Court's order, under Sections 155(4) or 185 of the Constitution, as to how a proper application should be brought; and the Court accordingly declined to do so.

(4)	In the event that the Court had entertained the application that was filed, it would, in any event, have been dismissed as (a) to the extent it is a slip rule application, no glaring mistake, error or slip has been brought to the Court's attention, and (b) to the extent it is an application by a person affected by the court's order, to vary the order, no good reasons were advanced in support of the perceived difficulty in complying with the Court's order, therefore there was no good reason to vary the order.

(5)	The application was misconceived and unmeritorious and an abuse of process, and accordingly was dismissed, with costs awarded against the intervener which brought the application, in favour of the parties which opposed the application.

Cases cited

The following cases are cited in the judgment:

Supreme Court Reference No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917
Supreme Court Reference No 4 of 1987; Re Central Provincial Government and NCDIC [1987] PNGLR 249
Supreme Court Reference No 2 of 2010; Special Reference by the Attorney-General (2010) SC1078
Supreme Court Reference No 3 of 1999; Special Reference by the Ombudsman Commission (1999) SC628
Supreme Court Reference No 3 of 2000; Special Reference by the Governor-General (2002) SC722
Supreme Court Reference No 4 of 2010; Special Reference by the Morobe Provincial Executive (2010) SC1085
Trawen v Kama and Laimo (2010) SC1063

APPLICATION

This was a slip rule application made in relation to an opinion given by the Supreme Court for the purposes of a Constitution, Section 19 reference.

Counsel

A Manase, for the referrer
P Ame, for the first intervener
K Naru, for the second intervener
L Kandi, for the fourth intervener
B Lomai, for the fifth intervener

22 December, 2010 

1. BY THE COURT: On 10 December 2010 this Court gave its opinion on eight questions of constitutional interpretation and application surrounding the decision of the National Parliament on 25 June 2010 to nominate Sir Paulias Matane for appointment as Governor-General. The opinion was given in response to a Special Reference by the Morobe Provincial Executive under Section 19 of the Constitution.

2. In the light of our answers to the questions, we made five declarations and orders, which were incidental to and formed an integral part of our binding opinion on the eight questions.

3. The declarations and orders were:

(1)	The appointment by the Queen and Head of State of Sir Paulias Matane as Governor-General, dated 25 June 2010, was unconstitutional and invalid.

(2)	Sir Paulias Matane shall cease to hold office as Governor-General at 12 midday on 13 December 2010.

(3)	There shall thereupon be deemed to be a vacancy in the office of Governor-General and accordingly, subject to Section 95 of the Constitution, the Speaker shall be the Acting Governor-General.

(4)	The Deputy Speaker or other member of the Parliament authorised under Section 108 of the Constitution or the Standing Orders of the Parliament to exercise or perform the powers, functions, duties and responsibilities of the Speaker shall, in accordance with Section 88(4) of the Constitution, as soon as practicable, call a meeting of the Parliament to nominate the next Governor-General, provided that the time and date for the meeting shall be no later than 40 days after the date of this order. [Emphasis added.]

(5)	For the purposes of nominating the next Governor-General, all proposals, votes, decisions and other processes made or conducted in May and June 2010 in connection with the appointment of the Governor-General are a nullity and shall not be relied on and accordingly the process of nominating the next Governor-General shall recommence ab initio in accordance with Section 3(a) of the Organic Law on the Nomination of the Governor-General.

4. Our judgment of 10 December 2010 has been published as Supreme Court Reference No 4 of 2010; Special Reference by the Morobe Provincial Executive (2010) SC1085.

APPLICATION

5. On 16 December 2010 one of the parties to the Reference, the second intervener, the National Parliament, filed an application under the slip rule for variation of order (4). The application is that the final part of order (4) – "provided that the time and date for the meeting shall be no later than 40 days after the date of this order" – should be deleted.

6. The basis of the application is that that part of order 4 was inserted by reason of a misapprehension of law or a 'slip' on the part of the Court. It is argued that we misapprehended Section 155(4) of the Constitution by including in order (4) the requirement that the Deputy Speaker set a time and date for the calling of a meeting of the Parliament that was no later than 40 days after the date of the order. It is argued that we mistakenly invoked Section 155(4) – which gives the Supreme Court the inherent power to make, in such circumstances as seem proper, such orders as are necessary to do justice in the circumstances of a case – by requiring the Deputy Speaker to meet a deadline for performance of his duty under Section 88(4) of the Constitution.

7. It is argued that Section 88(4) of the Constitution only requires the Speaker, in the event of a casual vacancy in the office of Governor-General, to call a meeting of the Parliament to nominate the next Governor-General "as soon as practicable"; and that by setting a time frame of 40 days, the Court offended against the principle of separation of powers.

DEPUTY SPEAKER'S POSITION

8. The application is supported by an affidavit of the Deputy Speaker, Hon Francis Marus MP, who, by operation of the Court's orders, is, and has been since 12 noon on 13 December 2010, in effect, the acting Speaker of the National Parliament. Mr Marus deposes to a "practical problem" with the 40-day time limit.

9. He says that as it is the festive season, it will be difficult to round up the members of the Parliament, that most Parliament staff would be on holidays and Parliament will not have funds to mobilise resources, personnel and logistics. He claims that "the Finance Department will close for the Christmas and New Year holiday period and recommend [sic] operations in March 2011". He suggests that January and February is when the school year begins and this "consumes much of the time and energy and resources of many parents around the country and members themselves are no exception". 

10. He says that he "cannot guarantee having a quorum for 10 consecutive sitting days as required by the Organic Law on the Nomination of the Governor-General, before the secret ballot is conducted". He says that in the November Budget session, K20 million was appropriated for a major renovation of Parliament House and that it is planned that the entire building will be closed off for the next five months. He has annexed copies of newspaper advertisements calling for tenders, which closed on 17 December 2010, regarding the renovation.

11. Mr Marus concludes that it would be reasonable and appropriate if the Court did not give him a deadline but "leave it open so that I can attend to it as soon as practicable, taking into account finance, logistics, personnel, and accessibility and availability and notification to members of Parliament".

IS THE APPLICATION PROPERLY BEFORE THE COURT?

12. The referrer, supported by the first and fifth interveners, argues that the application is not properly before the Court, as it has not been authorised by the Parliament.

13. Mr Naru, who appears for the Parliament in this application (but who, we note, was not the counsel for the Parliament at the substantive hearing) concedes that he has for the purposes of making this application taken instructions from the Deputy Speaker, Mr Marus. He has not taken instructions from the Parliament as it has not been sitting. The Parliament has not been in a position to decide to make this application. Nevertheless, he submitted that as Mr Marus is the acting Speaker and the head of the Parliament, he has the power to authorise the making of such an application.

14. We reject that submission. Special References under Section 19 of the Constitution are very special, unique proceedings. The Supreme Court has consistently insisted that its jurisdiction under Section 19 must be properly invoked. When a person or institution makes a reference to the Court it must be properly authorised and signed. In its recent decision in Supreme Court Reference No 2 of 2010; Special Reference by the Attorney-General (2010) SC1078, which involved a challenge to the constitutional validity of a statement of claim in National Court proceedings Mr Peter Yama instituted against the State, and a deed of settlement of that claim, the Court dismissed the reference for being incompetent for various reasons, including that the reference, which was framed as a reference by the Attorney-General and Principal Legal Adviser, was not made in the name of the person who held those offices on the day that it was filed – Hon Ano Pala MP. Nor was it signed by the correct person. The failure to comply with that critical requirement was a fatal defect, which rendered the reference incompetent.

15. The Court held, as it had held in two previous cases, that the signing requirement was not a minor matter of form. In SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917 the Supreme Court struck out a Section 19 reference, which was filed in the name of a Provincial Executive, as the reference was signed by the referrer's lawyer. The Court in that case followed its decision in SCR No 4 of 1987; Re Central Provincial Government and NCDIC [1987] PNGLR 249 where a reference was struck out for the same reason. The Court held that a rule stipulating who has to sign a reference actually reinforces the power and authority of a referring authority to make a reference. It is a check and balance against the making of bogus or unauthorised references. The signing requirement is, due to the very special nature of a Section 19 reference, critical. 

16. If the court is to hear and determine a Section 19 reference it must be satisfied that the jurisdiction of the court has been properly invoked and that the referring authority has made a considered decision to make the reference. The court can only be satisfied of those things if the reference is properly signed. It is necessary to insist on strict compliance with the signing requirement to preserve the integrity of the Section 19 procedure and to ensure that the power to make such a reference is properly controlled.

17. The same principles must apply when a party comes before the Court with an application for the Court to 'correct' an opinion made on a Section 19 Reference: the application must be properly authorised and properly signed. The present application fails on both counts. It is brought in the name of the Parliament but it has not been authorised by the Parliament. And it has not been signed by the responsible officer – the acting Speaker – on behalf of the Parliament. It has been signed by the Parliament's lawyer, Mr Naru.

The application is incompetent and for that reason alone must be dismissed.

CAN THE DEFECTS IN THE APPLICATION BE REMEDIED?

18. Mr Naru and Mr Kandi, for the fourth intervener, the Attorney-General, suggested that if the Court found defects in the application, we should nevertheless assist the parties address the practical difficulties faced by the acting Speaker in complying with order (4). This could be done, they submitted, by making orders or giving directions under Section 155(4) and/or Section 185 of the Constitution to enable the real issues in dispute to be determined. Section 155(4), as we have already highlighted, allows the court to make orders to "do justice" in the circumstances of a particular case. Section 185 provides:

If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.

19. We decline the invitation by Mr Naru and Mr Kandi to "assist" them or their clients in finding a way to properly invoke the jurisdiction of the Supreme Court. Counsel must appreciate that it is their job to assist the Court. It is not the Court's role to assist lawyers make a proper application to the Court.

20. The Court is faced with a fatally defective application. It would only belittle the integrity of the Section 19 jurisdiction of this Court if we were to accommodate half-hearted and ill-conceived requests of this nature.

21. Mr Naru made no attempt to seek the Court's leave to amend the application and did not seek an adjournment to allow time to take instructions from his client, the acting Speaker, as to how to remedy this problem. 

22. It was suggested during exchanges between bench and bar (and it was frankly disclosed by Mr Manase that a suggestion to this effect had been made by him to Mr Naru) that a proper way of the acting Speaker agitating his difficulties in complying with order (4) might have been for the acting Speaker to make an application to the Court to vary its order as to the 40-day requirement. As it is the acting Speaker who has been ordered to do something, he may have had locus standi to make such an application despite his not being a party to the original proceeding. This suggestion has not been taken up or explored further. However, it should be noted that the Speaker (and therefore the acting Speaker) has no right of appearance in any Section 19 proceeding, except to the limited extent provided for by Section 19(3)(f) of the Constitution.

23. There is a limit to how far any independent and impartial court, least of all the highest court in the jurisdiction, the final arbiter of matters of constitutional interpretation and application, should go in assisting parties and other interested persons, and their lawyers, in discharging their powers, duties, functions and responsibilities.

24. The defects in the application now before us have not been attended to by those wishing to move it, and cannot be now remedied. This is another reason that the application must be dismissed.

MERITS OF THE APPLICATION

25. We will now say something about the merits of the application. We heard argument on the merits, so it will be useful to state how the application would have been determined, if we had entertained it.

26. To the extent that it is a slip rule application, the application would have been dismissed as no glaring mistake, error or slip has been brought to the Court's attention. A slip rule applicant must be able to point to some clear and manifest, not arguable, error of law or fact on a critical issue (Trawen v Kama and Laimo (2010) SC1063). That is a fundamental prerequisite that has not been met here.

27. What is contained in the submissions of Mr Naru and Mr Kandi are criticisms of the Court's judgment. Arguable propositions have been put that the Court went too far in saying what "as soon as practicable" means. However, nothing has been brought to our attention that can fairly be regarded as a mistake or slip, least of all a glaring one. The Court made a careful and considered decision to include very particular declarations and orders as an adjunct to and an integral part of its binding opinion on the eight questions referred to it. The source of jurisdiction was set out in our judgment: Section 155(4) and Section 19(1) of the Constitution.

28. The reason we set a 40-day time limit was to give real practical meaning and effect to the words "as soon as practicable" in Section 88(4). Just as the Supreme Court did in Supreme Court Reference No 3 of 1999; Special Reference by the Ombudsman Commission (1999) SC628 and Supreme Court Reference No 3 of 2000; Special Reference by the Governor-General (2002) SC722, where it interpreted the practical meaning of the requirement in Section 124(1) of the Constitution that the Parliament meet for "nine weeks" in each parliamentary year, in the present case we stated a minimum requirement in the circumstances of this particular case of what "as soon as practicable" means. This involved no intrusion into the independence of Parliament. There was no offence against the letter or spirit of the Organic Law on the Calling of Meetings of the Parliament.

29. What we endeavoured to do, and what, with respect, we achieved, by framing order (4) as we did, was to create certainty in a situation of uncertainty. To state clearly what had to be done to remedy the constitutional breaches exposed by the Court's judgment. To relieve confusion. To prevent dilly-dallying. To not leave burning questions unresolved. To enforce the spirit of the Constitution. To replace constitutional dysfunction with constitutional normalcy. To give effect to the principle expressed in Section 254(a) of the Constitution that:

no constitutional office shall be left unfilled on a substantive basis for longer than is necessary for it to be filled by an appropriate appointee.

30. We also take into account Schedule 1.9 of the Constitution, which states:

Where no time is prescribed or allowed within which an act is required or permitted by a Constitutional Law to be done, the act shall or may be done, as the case may be, with all convenient speed and as often as the occasion arises. [Emphasis added.]

31. With respect, the inclusion in order (4) of a 40-day requirement was a necessary order to make, given the extraordinary constitutional circumstances in which the country has been placed. The office of Governor-General takes precedence in rank, by virtue of Section 84 of the Constitution, immediately after the office of Queen and Head of State. The importance of filling the vacancy in this high constitutional office cannot be overstated.

The slip rule application is devoid of merit.

THE PERCEIVED DIFFICULTIES

32. We find in Mr Marus's affidavit, not a set of insurmountable constitutional or practical difficulties in complying with the court's order, but, with respect, a litany of excuses for inaction. 

33. It is bewildering in the extreme that the acting Speaker would bewail the task of "rounding up" MPs during the festive season to attend to their constitutional duties or would profess difficulties in getting Parliament staff back to work from their holidays. To suggest, as the acting Speaker does, that the Department of Finance will close down until March 2011, is staggering. Surely, that is not a correct statement of fact. Yet the acting Speaker has deposed to this in his sworn affidavit.

34. Any genuine funding difficulties in calling a meeting of the Parliament can be addressed under Section 225 of the Constitution, which states:

Without limiting the generality of any other provision of this Constitution, it is the duty of the National Government and of all other governmental bodies, and of all public office-holders and institutions, to ensure, as far as is within their respective legal powers, that all arrangements are made, staff and facilities provided and steps taken to enable and facilitate, as far as may reasonably be, the proper and convenient performance of the functions of all constitutional institutions and of the offices of all constitutional office-holders.

35. For the acting Speaker to say that he cannot guarantee a quorum for ten sitting days portrays an alarming ignorance of the requirements of the Organic Law on the Nomination of the Governor-General. The Organic Law does not say that the Parliament must meet for ten sitting days. As to the claim that Parliament House will be closed for five months, how does this relate to the newspaper advertisements annexed to Mr Marus's affidavit? Tenders closed only last Friday, 17 December 2010. Is the renovation work going to start in the next few weeks?

36. What will happen if the country goes to war tomorrow? Or if there is a declaration of a national emergency under Part X of the Constitution? Section 239 of the Constitution provides that in such situations the Parliament "shall be called to meet as soon as practicable, and in any event not more than 15 days, after the commencement of the period and thereafter during the period at intervals each not exceeding two months". Will it be said that it is 'too difficult' to meet this constitutional requirement? That MPs are on holidays and too busy sorting out school fees? That there are no funds? That Parliament House is closed for renovation?

37. The reasons advanced for having difficulty with complying with order (4) betray a disturbing lack of appreciation of the significance of the constitutional breaches disclosed in our judgment of 10 December 2010, and the acute need to remedy them quickly.

38. If the application had been regarded as a genuine application by the acting Speaker to vary the Court's order, no good reasons have been advanced in support of the perceived difficulty in complying with the Court's order. There is no good reason to vary the order.

CONCLUSION

39. The application before us is incompetent and unmeritorious, and an abuse of process. It must be dismissed, with costs awarded on a solicitor-client basis against the intervener which brought the application, in favour of the parties which opposed it.

ORDER

(1)	The slip rule application filed by the second intervener, dated 16 December 2010, is dismissed for being incompetent and unmeritorious and an abuse of process.

(2)	For the avoidance of doubt, all declarations and orders of 10 December 2010 remain in force.

(3)	The Office of the Speaker of the National Parliament shall pay, in relation to the slip rule application, the costs of the referrer, the first intervener and the fifth intervener, on a solicitor-client basis, to be taxed, if not agreed.

(4)	The question of costs in relation to the substantive Section 19 Reference remains open, pending an application for costs by any party to the Reference.

Judgment accordingly.
_____________________

Manase Lawyers: Lawyers for the Referrer
Ame Lawyers: Lawyers for the First Intervener
Kelly Naru Lawyers: Lawyers for the Second Intervener
Solicitor-General: Lawyer for the Fourth Intervener
Lomai & Lomai Attorneys: Lawyers for the Fifth Intervener