SC1898

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCC (OS) 4 of 2019

Reference pursuant to Section 18(1) of the Constitution

Reference by the Honourable Belden Namah, MP in his capacity as the Leader of the Opposition

In the matter of Constitution Sections 11, 32, 41, 50, 59, 108, 142 and 158(2)

Waigani: Hartshorn J
2019: 10th & 13th December

SUPREME COURT REFERENCE - Application to Intervene by Hon. Manasseh Makiba – whether the applicant has substantial interest in the issues to be decided in the case – applicant has not satisfied the court that he has such an interest – application to intervene dismissed

Cases Cited

Reference by Igo Namona Oala (2011) SC1128
In re Re-Election of the Governor General, Special Reference by Morobe Provincial Executive (2012) SC1202
Application by Don Pomb Polye  v. Theodore Zurenuoc and Ors (2016) unreported, unnumbered, delivered 6th July 2016
Special Reference pursuant to Section 19(1) Constitution by Hon. Davis Stephen (2019) SC1790
Special Reference pursuant to s. 19(1) Constitution (2019) SC1828

Counsel:

Mr. G. Sheppard and Mr. G. Purvey, for the Referrer
Mr. M. Nale, for the First Intervener
Mr. N. Yalo, for the Second Intervener
Mr. C. Mende, for the Third Intervener
Mr. L. Okil, for Hon. Manasseh Makiba

13th December, 2019

1. HARTSHORN J: This is a decision on an application to intervene in this Reference by Hon. Manasseh Makiba, the Member of Parliament for the Komo Margarima Open Electorate (applicant). 

2. This Reference is applied for pursuant to s. 18(1) Constitution by the Leader of the Opposition, Hon. Belden Namah (referrer). The referrer opposes the application to intervene by the applicant.

Reference

3. The referrer seeks the opinion of the Supreme Court on questions relating to the interpretation or application of sections of the Constitution concerning the election of Hon. James Marape as Prime Minister on 30th May 2019 by the Parliament and before that election, the purported withdrawal of the nomination of Hon. Peter O’Neill for the position of Prime Minister and the actions of the Speaker of Parliament in accepting that withdrawal.

This application 

4. The applicant submits that his application to intervene in this Reference should be granted as:

a)	he is entitled to protect his office as a Member of Parliament pursuant to s.50 	Constitution and his participation in the decision making process of Parliament in appointing a Prime Minister from time to time;

b)	his position within the present Government is likely to be affected if this Court interprets the appointment of Hon. James Marape as Prime Minister as 	harsh and unconstitutional;

c)	the current interveners in this Reference will not adequately protect his interests;

d)	to date, he is the only one of the Members of Parliament who are all capable of claiming the same interest which he claims.

Consideration

5. The applicant makes his application for leave to intervene pursuant to Order 4 Rule 21 Supreme Court Rules. 

6. In the decision of Davani J. in Reference by Igo Namona Oala (2011) SC1128, after a detailed consideration, including of several Australian High Court cases, Her Honour held amongst others, that the discretion to grant leave to intervene is a very wide one and that an applicant must have a substantial interest in the issues to be decided in the case. This interest can be a direct interest or in effect, an interest in another proceeding that an applicant has which may be affected by the Reference decision.

7. More recently in the decision in Application by Don Pomb Polye v. Theodore Zurenuoc and Ors (2016) unreported, unnumbered, delivered 6th July 2016 (Injia CJ, Salika DCJ, Makail J), in delivering the reasons of the Court for refusing applications to intervene, Injia CJ (as he then was) said:

“….. we do not believe….. those other persons have any real interest in terms of that substantive issue.” and;

“….. we do not consider that the applicants intervening in this case have any real interest in the substantive issue that is before the court for determination, and the applications should be dismissed for that main reason.”

8. The court held in Polye’s case (supra), brought by a former Leader of the Opposition, which concerned amongst others, motions of no confidence, that the Prime Minister and the Leader of Government Business did not have any real interest in the subject matter of the Reference.

9. Both Oala’s case (supra) and Polye’s case (supra) concerned References filed under s. 18(1) Constitution as is the case with this Reference. 

10. I also make reference to In re Re-Election of the Governor General, Special Reference by Morobe Provincial Executive (2012) SC1202, a s. 19(1) Special Reference case in which, at [17] the five member Court said:

“We agree with the reservations expressed by Davani J in Reference Pursuant to Section 18(1) of the Constitution by Igo Namona Oala & Oala Moi (2011) SC1128 about the Court perhaps being overly liberal in the past in permitting interveners to join constitutional references. Her Honour doubted the utility of allowing persons to intervene when all that they would be doing would be repeating submissions of the principal party.”

11. Then in Special Reference pursuant to s. 19(1) Constitution (2019) SC1828 the Court stated at [14]:

“From a consideration of the above cases, to our minds for the purposes of an intervention application, a substantial interest and real interest is a right or liability recognised in law, peculiar to an applicant, which is directly or is likely to be directly affected by the issues in the Reference.”

(See also Special Reference pursuant to Section 19(1) Constitution by Hon. Davis Stephen (2019) SC1790 at [12].) 

12. Adopting this test, the applicant in his evidence and in the grounds relied upon in this application in my view, has not satisfied this court that he has such an interest. To the extent that any rights that the applicant has pursuant to s. 50 Constitution may be affected, those rights are not peculiar to the applicant. This is acknowledged by the applicant by implication, in submitting that he is the only one of the Members of Parliament who are all capable of claiming the same interest which he claims, to apply to intervene in this Reference to date.

13. As to the applicant's position in the present Government being affected, I am not satisfied that such a position is a right or liability recognised in law peculiar to the applicant. Any Member of Parliament currently occupying one of the numerous ministerial or vice ministerial positions may claim that his position is similarly likely to be affected. 

14. As to the argument that the current interveners will not protect the applicant's interests, all of the current interveners are Members of Parliament and could not have been appointed to their respective positions if they were not. They also have an interest in protecting the rights of a Member of Parliament to vote in Parliament and to participate in the election and appointment of a Prime Minister. This in essence, is the interest in respect of which the applicant seeks to intervene.

15. Consequently, for the above reasons, this application of the applicant should be dismissed.

Orders

16.  It is ordered that:

a)	The application of Hon. Manasseh Makiba for leave to intervene in this Reference filed 29th November 2019 is dismissed;

b)	No order as to costs

__________________________________________________________________
Young & Williams Lawyers:  Lawyers for the Referrer                                
Jema Lawyers:  Lawyers for the First Intervener                    
Nemo Yalo Lawyers: Lawyers for the Second Intervener                 
Wantok Legal Group: Lawyers for the Third Intervener                   
Kimbu & Associates:  Lawyers for Hon. M. Makiba