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In re Reference Pursuant to Constitution section 19(1) by Allan Marat [2012] PGSC 1; SC1149 (23 January 2012)

SC1149

PAPUA NEW GUINEA [IN THE SUPREME COURT OF JUSTICE]

SCR NO. 1 OF 2012

Reference Pursuant to Constitution Section 19 (1)

Reference by:

Dr Allan Marat, MP
In his capacity as the Attorney General and Principal Legal Adviser
to the National Executive Council

In the matter of Prime Minister and NEC Act 2002 Amendments and
Reserve Powers of Governor General

Waigani: Manuhu, J 2012: 23 January

PRACTICE AND PROCEDURE – Reference – Stay application – Request to adjourn stay application to enable filing of application to intervene and to object to competency – Political and constitutional complications – Other relevant factors.

No case cited.

Counsel:
T. Twivey, for the referrer.
P. Wright, for Sir Arnold Amet.

23rd January, 2012

1. MANUHU, J: This reference came before me this morning for substantive hearing of the application for stay of certain National Court proceedings that are said to be dependent on questions raised in the reference.

2. Mr. Wright, of Posman Kua Aisi Lawyers, announced his appearance and advised the Court that he, on behalf of Sir Arnold Amet, will be filing an application for Sir Arnold to intervene and thereafter file objection to competency of the reference. Mr. Wright was basically asking the Court to adjourn the stay application to enable Sir Arnold to file his applications.

3. Ms. Twivey objected to Mr Wright's appearance and request. It is submitted that Mr. Wright's request should not be entertained because neither he nor Sir Arnold filed any formal application. In addition, they could return to Court at any time to, upon filing, move their applications.

4. I have considered the submissions of both counsel. I agree with Ms Twivey that Sir Arnold is not a party to the reference as he has not filed any application to intervene. Therefore he should not be heard. However, I take judicial notice of the political and constitutional complications that has emerged from the decision of the five men Supreme Court bench on 12 December 2011 which decision restored Sir Michael Somare to the position of Prime Minister, and the election of Peter O'Neill as Prime Minister by Parliament at or around the same time.

5. Consequently, the country appears to have two Prime Ministers. Such is the gravity of the substantive proceeding and any related proceeding. In the circumstances, I am of the view that it is wise for the Court to exercise patience and thereby allow reasonable opportunity for a person with sufficient interest to be heard. There is a lot at stake.

6. In this case, I take judicial notice of the fact, a fact which cannot be ignored, that Sir Arnold is the Attorney General under Sir Michael as Prime Minister. Like Dr Allan Marat, Sir Arnold, as Attorney General, has sufficient interest in the reference. On the basis of Mr. Wright's appearance, I trust that Sir Arnold will file his applications to intervene and to object to the competency of the reference. I am therefore minded to exercise patience to enable Sir Arnold to file his applications.

7. Secondly, I am of the view that an order for a stay should not be granted where the substantive proceeding is incompetent. In other words, as in this case, the stay application is dependent on competency of the reference. Given the scenario that the country appears to have two Prime Ministers, especially when Dr Marat's appointment as Attorney General is not consistent with the decision of the five men bench, this Court would have raised questions on competency if it proceeded this morning to hear the stay application. This is a further reason for this Court to exercise patience and give Sir Arnold the opportunity to file his applications and be heard.

8. At the end of the day, it is appropriate for the Court to take necessary steps to permit both "Attorneys General" to be heard. This Court would then be able to arrive at a balanced opinion on the further conduct of the reference. I will allow two days for Sir Arnold to file his applications. It is incumbent upon him to file his applications.

9. The order of the Court therefore is that the application for stay is adjourned to Wednesday 25th January 2012 at 1.30pm for hearing.

10. I am obliged to indicate that if Sir Arnold files his applications, especially the objection to competency, which requires a full bench, it may be appropriate for the full bench to hear competency and stay applications together.
_____________________

Twivey Lawyers: Lawyer for the Referrer
Posman Kua Aisi Lawyers: Lawyer for Sir Arnold