SC1790
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR 4 and 5 of 2018

Special References pursuant to Section 19(1) of the Constitution

Special References by the Honourable Davis Steven, MP in his capacity as the Attorney General and Principal Legal Adviser to the National Executive Council

In the matter of Constitution Sections 11, 18, 19, 99, 108, 111, 115, 122, 124, 133, 134, 141, 142, 145, 155(b) and 162

SCR 4 of 2018: Sections 2 and 3 of the Organic Law on the Calling of Meetings of the Parliament
SCR 5 of 2018: Section 63 of the Organic Law on the Integrity of Political Parties

Waigani: Hartshorn J.
         2019: 8th &18th March

CONSTITUTIONAL LAW- Special reference under s19 (1) Constitution - application to Intervene by the Ombudsman Commission – 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 – applicant is entitled to utilize s.19(1) Constitution only in respect of matters in which it has a particular interest– applicant does not have substantial or real interest – application dismissed

Cases Cited

Application by Don Pomb Polye v. Theodore Zurenuoc and Ors (2016) unreported, unnumbered, delivered 6th July 2016
In re Re-Election of the Governor General, Special Reference by Morobe Provincial Executive (2012) SC1202 
Reference by Igo Namona Oala (2011) SC1128 

Counsel:

Mr. M.M. Varitimos QC, Ms. T. Twivey and Mr. J. Sione, for the Referrer
Dr. V.L. Narokobi, for the Ombudsman Commission

18th March, 2019

1.	  HARTSHORN J. This is a decision on contested applications to intervene by the Ombudsman Commission (applicant) in two Special References. 

2.    The Special References are applied for pursuant to s. 19(1) Constitution by Hon. Davis Steven, the Attorney General of Papua New Guinea and the Principal Legal Advisor to the National Executive Council (referrer). The referrer opposes the applications to intervene by the applicant.

Special References

SCR 4 of 2018

3.     The referrer seeks the opinion of the Supreme Court on questions relating to the interpretation or application of Constitutional Laws concerning the non-justiciability of Parliament, its committees and their procedures; the duties of the Speaker; the duties of the Clerk of Parliament; the calling of meetings of Parliament and whether one Supreme Court is able to declare a decision or order of another Supreme Court unconstitutional and invalid.

SCR 5 of 2018

4.   The referrer seeks the opinion of the Supreme Court on questions relating to the interpretation or application of Constitutional Laws concerning the Alternate Prime Minister and the effect of s. 63 Organic Law on the Integrity of Political Parties and Candidates, votes of no confidence and justiciability, whether a Supreme Court is able to declare a decision or order of another Supreme Court unconstitutional or invalid and the interpretation of “total number of seats in the Parliament” in s. 145(1)(b) Constitution.

These applications

5.   The applicant submits that its applications to intervene in the Special References should be granted as it has a substantial interest in the subject matter of the Special References as amongst others:

a)	the applicant was established to ensure governmental bodies fulfil their functions and to uphold the Constitution in the performance of their duties;

b)	the applicant ensures compliance with and aims to 	safeguard the supremacy of the Constitution and these Special References seek to invoke the Supreme 	Court’s powers of interpretation and application;

c)	the applicant has previously referred important constitutional questions to the Supreme Court under s. 19 Constitution and the Chief Ombudsman was granted standing in the cases concerning the election of the Governor General;

d)	these Special References raise questions concerning accountability measures of the Executive arm of government in regard to a vote of no confidence;

e)	the applicant is an authority listed in s. 19(3) Constitution which is able to file a Special Reference;

f)	as these are s. 19 Constitutional References, the applicant has a substantial interest in them;

g)	these Special References will determine the extent of the accountability of the Executive arm of government.

6.   The referrer opposes the intervention of the applicant as:

a)	the applicant does not have any real or substantial interest in the substantive issues raised in the Special References;

b)	these Special References makes no reference to any of the provisions of the Organic Law on the Ombudsman Commission, or to sections of the Constitution concerning the applicant or the Leadership Code;

c)	the applicant and other authorities specified in s. 19(3) Constitution do not have an automatic or unqualified right to intervene in any s. 19 Special Reference;

d)	the applicant is limited to functions and powers provided to it by the 	Constitution and the Organic Law on the Ombudsman Commission;

e)	these Special References do not concern the interpretation of, or matters that arise out of, functions or powers of the applicant;

f)	the grounds contained in the applications to intervene of the applicant do not establish a real interest or a substantial interest in the issues to be decided in these Special References. 

Consideration

7.   The applicant makes its applications for leave to intervene pursuant to Order 4 Rule 21 Supreme Court Rules 2012. Reliance was placed upon the decision of Davani J. in Reference by Igo Namona Oala (2011) SC1128. In that decision, 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.

8.    It was submitted on behalf of the applicant that as these Special References do not only concern issues relating to Parliament, but also the Supreme Court; that the applicant is specifically referred to as an authority under s. 19(3) Constitution which may make an application under s. 19(1) Constitution; for the reasons listed in paragraph 5 above, and that this Court’s discretion is very wide, the applicant should be granted leave to intervene.

9.    The referrer cited 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.”

10.    Both Oala’s case and Polye’s case concerned References filed under s. 18(1) Constitution. These References are Special References filed under s. 19(1) Constitution. 

11.   In In re Re-Election of the Governor General, Special Reference by Morobe Provincial Executive (2012) SC1202, a s. 19(1) Special Reference case, 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.”

12.    From a consideration of the above cases, to my mind 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.

13.   Adopting this test, the applicant in the evidence filed on its behalf and in the grounds relied upon in these applications has not satisfied this court that it has such an interest. Further, that it is one of the authorities listed in s. 19(3) Constitution which is entitled to file a Special Reference under s. 19(1) Constitution and that it has filed numerous Special References in the past, does not lead to the conclusion that it is entitled to intervene in any s. 19(1) Special Reference in respect of which it has not made application under s. 19(1) Constitution. If this were so, all of the authorities listed under s. 19(3) would be so entitled to intervene in every Special Reference. Such a scenario would be unworkable and is unlikely to have been in the contemplation of the authors of the Constitution. In that regard, the authorities that are listed in s. 19(3) Constitution have a responsibility, in my view, to utilize s.19(1) Constitution only in respect of matters in which they have a particular interest.

14.     Given the above, the applications of the applicant to intervene in these Special References should be refused.

Orders

15. It is ordered that:

a)	The applications of the Ombudsman Commission for leave to intervene in these Special References filed 21st February 2019 are dismissed;

b)	The Ombudsman Commission shall pay the costs of the referrer of and incidental to these said applications to be taxed if not otherwise agreed.
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Twivey Lawyers: Lawyers for the Referrer                                
Office of the Ombudsman Commission: Lawyers for the Ombudsman Commission