SC1828  

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR 5 of 2018

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

Special Reference 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 19, 99, 108, 111, 115, 133, 134, 142, 145, 155(b) and 162

Section 63 of the Organic Law on the Integrity of Political Parties

                                          Waigani: Hartshorn J, Makail J, Dingake J
         2019: 21st May 

Application to Intervene by Hon. Kerenga Kua

Cases Cited 

SCR No 2 of 1981 [1981] PNGLR 150
Ume More v. UPNG [1985] 401 at 402 
Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1156 
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
Behrouz Boochani v. The State (2017) SC1566

Counsel:

Ms. T. Twivey, for the Referrer
Mr. R Webb SC and Mr. G. Purvey, for the First Intervener
Mr. R. Lains, for the Second Intervener
Mr. L. Henao and Mr. J. Wohuinangu, for Hon. Patrick Pruaitch and Hon. Kerenga Kua

21st May, 2019

1. BY THE COURT: This is a decision on a contested application to intervene in this Special Reference by Hon. Kerenga Kua (applicant). 

2. The Special Reference is applied for pursuant to s. 19(1) Constitution by the Attorney General of Papua New Guinea and the Principal Legal Adviser to the National Executive Council (referrer). The referrer, and the first and second interveners, the Speaker and Clerk of Parliament oppose the application to intervene by the applicant.

Special Reference

3. 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.

This application

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

a)	A motion of no confidence in a Prime Minister is a matter of national 	interest and not of a parochial nature pursuant to s. 145 Constitution, and Orders 130 and 22(3) Standing Orders of Parliament;

b)	Questions referred in paragraph 2(b) of the Application to Intervene directly affect or relate to the deliberation and consideration of the motion of no confidence in Prime Minister, Hon. Peter O’Neill, MP on 7th May 2019; and

c)	He is a Member of Parliament and has an interest in this matter

Consideration

5. The matters referred to in Grounds 1) a) and 1) b) of the Application to Intervene of the applicant are concerned with a motion of no confidence in a Prime Minister and the specific motion of no confidence served on the Speaker on 7th May 2019.

6. When the application was called this morning, counsel for the applicant informed the Court and handed up evidence to the effect that a proposed motion of no confidence in the Prime Minister (motion of no confidence) had been withdrawn. The filing by the referrer of an application to stay in respect of the motion of no confidence was given as the reason for this application to intervene.

7. Given that the motion of no confidence has been withdrawn, the subject of two of the grounds of the applicant have been removed. This leaves the ground that the applicant is a Member of the National Parliament, is the Shadow Attorney General and Minister for Justice.

8. The applicant makes his application for leave to intervene pursuant to Order 4 Rule 21 and 22 Supreme Court Rules. 

9. 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.

10. 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.”

11. The court held in Polye’s case, 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.

12. 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. 

13. 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.”

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.

15. Adopting this test, the applicant in the evidence filed on his behalf and in the grounds relied upon in this application has not satisfied this court that he has such an interest. Notwithstanding that he is currently the Shadow Attorney General and Minister for Justice, the applicant is also a Member of Parliament. Any Member of Parliament is theoretically a Shadow Attorney General or Minister. The applicant’s interest in this Special Reference in our view, cannot be categorised as peculiar to him. 

16. In regard to the reliance upon s. 155(4) Constitution, this section has been considered on numerous occasions by this Court. It has been interpreted as conferring jurisdiction on the court to issue facilitative orders, such as prerogative writs or an injunction, in aid of the enforcement of a primary right conferred by a law: SCR No 2 of 1981 [1981] PNGLR 150 at 150 and Ume More v. UPNG [1985] 401 at 402.

17. In Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1156 at [11], reproduced by Salika DCJ (as he then was) and Hartshorn J in Behrouz Boochani v. The State (2017) SC1566 at [39], it was stated:
“6.      Section 155 (4) is not however the source of any substantive rights, as stated by Kidu CJ in SCR No 2 of 1981 (supra):
“The provision under reference…. does not…. vest in the National Court or the Supreme Court the power to make orders which confer rights or interests on people. Such rights or interests are determined by other constitutional laws, statutes and the underlying law. Section 155 (4) exists to ensure that these rights or interests are enforced or protected if existing laws are deficient to render protection or enforcement.”
7.      We also make reference to Powi v. Southern Highlands Provincial Government (2006) SC844 in which the Court, after giving detailed consideration to s. 155 (4) said that in its view, there are about five important features or attributes of that section. They are:
“1. The provision vests the Supreme and National Court with two kinds of jurisdictional powers, namely orders in the nature of prerogative writs and the power to make “such other orders as are necessary to do justice in the particular circumstances of each case” before the Court;
2. Although the power is inherent, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution;
3. Where remedies are already provided for under other law, the provision does not apply;
4. The provision does not grant the Supreme Court power to set aside or review the decision of another Supreme Court regardless of number (sic) it is constituted, except as may be provided for by any law; and
5. A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law.” 
8. We respectfully agree with the views expressed in Powi (supra).”

18. In this instance an application to intervene in a reference is specifically provided for by Order 4 Rules 21, 22, 23 and 24 Supreme Court Rules. 

19. In our view, Order 4 Rules 21 and 22 provide the jurisdiction for the order and the remedy that the applicant seeks. As there are therefore, Rules upon which the applicant has relied, the applicant cannot rely upon s. 155(4) Constitution: Powi (supra); and for a different result. Consequently, the application of the applicant should be dismissed. 

Orders

20. The Court orders that:

a)	The application of Hon. Kerenga Kua for leave to intervene in this 	Special Reference filed 20th May 2019 is dismissed;

b)	Hon. Kerenga Kua shall pay the costs of the referrer, the first intervener and 	the second intervener of and incidental to this said application to be taxed if 	not otherwise agreed.
__________________________________________________________________
Twivey Lawyers: Lawyers for the Referrer                                
Young & Williams: Lawyers for the First Intervener                    
Hardy & Stocks: Lawyers for the Second Intervener                 
Henaos Lawyers: Lawyers for the Hon. Patrick Pruaitch and Hon. Kerenga Kua