SC1934
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCC (OS) NO 4 OF 2019

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)

REFERENCE BY THE HONOURABLE
BELDEN NORMAN NAMAH MP,
IN HIS CAPACITY AS LEADER OF THE OPPOSITION

IN THE MATTER OF THE CONSTITUTION,
SECTIONS 11, 32, 41, 50, 59, 108, 114, 142 AND 158(2)

Waigani: Kandakasi DCJ, Cannings J, Shepherd J
2020: 25th & 27th March

PRACTICE AND PROCEDURE – objection to competency of proceedings commenced as application under Constitution, s 18(1) – whether applicant lacked authority to commence proceedings as Leader of the Opposition – whether applicant improperly amended application without leave of Court – whether application non-compliant with Supreme Court Rules 2012, Order 4, Rules 1 and 3 and Form 1 – whether application incorrectly entitled. 
The first intervener (supported by other interveners) to an application by the Leader of the Opposition under s 18(1) of the Constitution, which challenged the constitutionality of appointment of the Prime Minister, objected to competency of the application on four grounds: (1) the applicant lacked capacity to commence the proceedings as Leader of the Opposition; (2) the applicant amended the application without leave of the Court, contrary to Order 4, Rule 10 of the Supreme Court Rules 2012; (3) the application failed to state how each provision of the Constitutional Laws that the applicant is requesting be interpreted, ought to be interpreted, and is therefore non-compliant with Order 4, Rules 1 and 3 and Form 1 of the Rules; and (4) the application used an incorrect file reference and was incorrectly entitled as a “Reference” and is therefore non-compliant with Order 4, Rule  1 and Form 1 of the Rules. 
Held:
(1)	The applicant was for all intents and purposes the Leader of the Opposition on the date of filing the application and had not misdescribed the capacity in which he stated he was commencing the application. Ground 1 dismissed.

(2)	The application was amended on the same day that other parties were granted leave to intervene and therefore under Order 4, Rule 10 of the Rules, the applicant did not require leave to amend. No breach of the Rules was proven. Ground 2 dismissed. 

(3)	The argument that the application failed to adequately state the preferred interpretation of each Constitutional Law provision it referred to, was heard and rejected in the course of the decision as to the applicant’s standing; and no new evidence or argument was put to the Court, which would enable it to seriously consider a different determination of it. Ground 3 dismissed. 

(4)	The file reference was in accordance with a practice direction by the Registrar. However, the application was incorrectly entitled as a reference, contrary to the Rules and Form 1. This was a material error, which created confusion as to the jurisdiction of the Court that the applicant was seeking to invoke. The Supreme Court has no power to entertain references under s 18(1) of the Constitution. The interveners and more importantly the Court have been led into error on multiple occasions by referring to the proceedings as a “reference” and describing the applicant as a “referrer”. The application was not in a proper form and failed to comply with Order 4, Rules 1 and 3 and Form 1 of the Rules and this by itself rendered the proceedings incompetent. Ground 4 upheld. 

(5)	Though three grounds of objection were dismissed, one was upheld. The objection to competency was accordingly upheld and the proceedings were entirely dismissed.

Case Cited
The following cases are cited in the judgment:

Application by Morobe Provincial Government (2012) SC1190
Application by Namah (2020) SC1932
Application of Jim Kas, Governor of Madang (2001) SC670
Benham Satah & 301 Others v Rabura Mataio, Chief Migration Officer (2016) SC1548
James Lovika & 79 Others v Carl Malpo & The State (2019) SC1895
Kawaso Ltd v Oil Search (PNG) Ltd (2010) SC1082
Lucas Dekena v Nick Kuman (2018) SC1715
Morauta v Pala (2016) SC1529
Namah v Pato[2013] 1 PNGLR 205
Peter O’Neill v Nerrie Eliakim (2016) SC1522
Re Reference by Ken Norae Mondiai (2010) SC1087
Rea Joseph v Manau Sereva (2011) SC1152
SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917
SC Ref No 4 of 1987; Re Central Provincial Government and NCDIC [1987] PNGLR 249
Special Reference by Morobe Provincial Executive (2010) SC1089
Steven Punagi v Pacific Plantation Timber Ltd [2011] 2 PNGLR 92

OBJECTION

This was an objection to competency of an application under s 18(1) of the Constitution.

Counsel

G J Sheppard & P Tabuchi, for the Applicant
M Nale & A Serowa, for the First Intervener
N Yalo, for the Second Intervener
C Mende, for the Third Intervener

27th March, 2020

1.      BY THE COURT: This is a ruling on an objection to competency of an application to the Supreme Court under s 18(1) of the Constitution. The application was filed by the applicant the Honourable Belden Norman Namah MP on 23 September 2019. 

2.     The applicant seeks declarations as to the constitutionality of the appointment on 30 May 2019 of the Prime Minister, the Honourable James Marape MP. He contends that the decision of the Parliament of that day to appoint Mr Marape as Prime Minister, followed:

•	an unconstitutional, invalid and unlawful withdrawal of nomination by a candidate for the position of Prime Minister, the Honourable Peter O’Neill MP;

•	an unconstitutional, invalid and unlawful acceptance by the Speaker of the National Parliament, the Honourable Job Pomat MP, of withdrawal of the nomination; and 

•	an unconstitutional, invalid and unlawful election in the Parliament, in which the only two candidates were Mr Marape and the Honourable Sir Mekere Morauta MP.

3.     The applicant contends that the process of deciding on who should be the next Prime Minister, following Mr O’Neill’s resignation from that office on 29 May 2019, miscarried due to the failure to have proper regard to the following provisions of the Constitution:

•	Section 11 (Constitution etc as supreme law); 
•	Section 32 (right to freedom);
•	Section 41 (proscribed acts);
•	Section 50 (right to vote and stand for public office);
•	Section 59 (principles of natural justice); 
•	Section 108 (functions of the Speaker and Deputy Speaker); 
•	Section 114 (voting in the Parliament);
•	Section 142 (the Prime Minister); and 
•	Section 158(2) (exercise of the judicial power). 

4.     Three persons have been granted leave under Division 4.7 of the Supreme Court Rules2012 to intervene in the proceedings:

•	the first intervener, the Prime Minister, the Honourable James Marape MP; and

•	the second intervener, the Deputy Prime Minister, Minister for Justice and Attorney-General, the Honourable Davis Steven MP; and 

•	the third intervener, the Speaker of the National Parliament, the Honourable Job Pomat MP.

GROUNDS OF OBJECTION

5.     The first intervener (supported by other interveners) objects (by an amended notice of objection filed 17 March 2020) to competency of the application on four grounds, which are, as clarified by submissions of counsel for the first intervener: 
(1)	the applicant lacked capacity to commence the proceedings as Leader of the Opposition; 

(2)	the applicant amended the application without leave of the Court, contrary to Order 4, Rule 10 of the Supreme Court Rules; 

(3)	the application failed to state how each provision of the Constitutional Laws that the applicant is requesting be interpreted, ought to be interpreted, and is therefore non-compliant with Order 4, Rules 1 and 3 and Form 1 of the Rules; and 

(4)	the application used an incorrect file reference and was incorrectly entitled as a “Reference” and is therefore non-compliant with Order 4, Rule  1 and Form 1 of the Rules. 
GROUND 1: APPLICANT LACKED CAPACITY TO COMMENCE PROCEEDINGS AS LEADER OF THE OPPOSITION

6.     The interveners argue that the applicant commenced the proceedings on 23 September 2019 in his capacity as Leader of the Opposition, but on that day he was not the Leader of the Opposition; he therefore lacked capacity to commence the proceedings as Leader of the Opposition, and this renders the proceedings incompetent.

7.    It is true that the applicant commenced the proceedings in his capacity as Leader of the Opposition, which were described in these terms: 

SCC (OS) No 4 of 2019

Application Pursuant to Constitution
Section 18(1)

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

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

8.     The applicant signed the application as follows:

HON. BELDEN NORMAN NAMAH, 
LEADER OF THE OPPOSITION

9.     The question arises whether on 23 September 2019 Mr Namah was in fact and law the Leader of the Opposition. The interveners say no, he was not, and he did not become Leader of the Opposition until the Parliament convened and recognized him as such on 8 October 2019, in accordance with the definition of the term “Leader of the Opposition” in Schedule 1.2 of the Constitution, which states:

In this Constitution or an Organic Law …
"the Leader of the Opposition" means the member of the Parliament (if any) recognized by the Parliament as being the principal speaker on behalf of those members of the Parliament who are not generally committed to support the Government in the Parliament.
10.     The facts surrounding this issue are uncontentious:

•	on 10 September 2019 the then Leader of the Opposition, the Honourable Patrick Pruaitch MP, announced his intention to move to the Government;

•	on 11 September 2019 an Opposition caucus meeting was conducted and Mr Namah was elected as Leader of the Opposition;

•	on 18 September 2019 the Speaker wrote to Mr Namah, acknowledging him as Leader of the Opposition and congratulating him on his appointment to that office;

•	on 8 October 2019 the Parliament met for the first time after Mr Namah had held himself out as Leader of the Opposition, and in the proceedings of the Parliament he was referred to as Leader of the Opposition;

•	In the period from 11 September to 8 October 2019, no person other than Mr Namah claimed to be Leader of the Opposition.

11.     We are satisfied for the purposes of these proceedings, having heard extensive argument on the issue, that Mr Namah became Leader of the Opposition on the day that he was elected to that position by the Opposition caucus: 11 September 2019. We reject the interveners’ argument that a member of the Parliament only becomes Leader of the Opposition when he or she is recognised as such by the Parliament at a meeting of the Parliament. In forming that opinion, we have taken into account:

•	the Constitution makes no provision for appointment of a person as Leader of the Opposition;

•	Schedule 1.2 is only an interpretation provision, which does not purport to set a procedure for appointment of a Leader of the Opposition, and the definitions it provides for are intended to apply, by virtue of Schedule 1.1 (1), “unless the contrary intention appears, in the interpretation of the Constitution and the Organic Laws”. 

•	the only Constitutional Law which has made any attempt to provide a procedure for appointment and recognition of a member of the Parliament as Leader of the Opposition is s 64 (office of Opposition and election of Opposition Leader) of the Organic Law on the Integrity of Political Parties and Candidates 2003, which provided:

(1)	There shall be established an Office of the Opposition which is made up of Members of Parliament not in government.

(2)	The Members shall elect in a democratic manner one of their numbers to be the Leader of the Opposition who shall in turn then appoint one of the Members to be the Deputy Leader.

(3)	Funds shall be provided in each year from the Consolidated Revenue Fund for the maintenance and expenses of the Office of the Opposition.

•	there is no provision of any law, including the Standing Orders of the National Parliament, which provides any process for formal recognition as a member of the Parliament as Leader of the Opposition. 

12.     We find that in fact and law Mr Namah became Leader of the Opposition on 11 September 2019 and his status as the holder of that position was confirmed by the Speaker through his letter to Mr Namah on 18 September 2019. In acknowledging and congratulating Mr Namah as Leader of the Opposition, the Speaker was formally recognising him as such on behalf of the Parliament, consistently with the discharge of his functions as Speaker prescribed by s 108 (functions of the Speaker and Deputy Speaker), which states:

The Speaker is responsible, subject to and in accordance with the Constitutional Laws, the Acts of the Parliament and the Standing Orders of the Parliament, for upholding the dignity of the Parliament, maintaining order in it, regulating its proceedings and administering its affairs, and for controlling the precincts of the Parliament as defined by or under an Act of the Parliament.
13.     Mr Namah’s position as Leader of the Opposition was reconfirmed when the Parliament met on 8 October 2019.

14.    We find that on the day of filing the application, 23 September 2019, Mr Namah was Leader of the Opposition. He properly described himself as filing the application in that capacity. Ground 1 of the objection is dismissed. 

GROUND 2: APPLICANT IMPROPERLY AMENDED APPLICATION WITHOUT LEAVE 

15.     The interveners argue that on the day he filed an amended application, 4 November 2019, two parties (the Prime Minister and the Deputy Prime Minister) were granted leave to intervene, therefore Mr Namah required leave of the Court to file the amended application; he did not have leave, therefore he breached the Supreme Court Rules, Order 4, Rule 10, and this renders the proceedings incompetent.

16.     Order 4, Rule 10 states:

The applicant or referrer may amend the application, reference or special reference—
(a)	if no party has intervened;
(i)	without leave before hearing, or
(ii)	with leave after commencement of hearing but before the court has given its opinion; or
(b)	if a party has intervened, with leave of the court or of a Judge.
17.    As the interveners were granted leave to intervene on the same day – 4 November 2019 – that the applicant filed his amended application, they would need to prove that during that day, the amended application was filed at a point in time after the interveners were granted leave. The fact-finding principle that ‘he who asserts must prove’ applies. The interveners have not proven that they were granted leave to intervene before the applicant filed the amended application. No breach of the Rules has been proven.

18.     Apart from that, if the interveners had proven that the applicant breached the Rules by amending the application without leave, it would not follow that the proceedings are incompetent. The only consequence would be that the amendments to the application would be ineffective. Ground 2 of the objection is dismissed. 

GROUND 3: APPLICATION NON-COMPLIANT WITH ORDER 4, RULES 1 AND 3 AND FORM 1 OF SUPREME COURT RULES 

19.     The interveners argue that the application failed to state how each provision of the Constitutional Laws that the applicant is requesting be interpreted, ought to be interpreted, and is non-compliant with Order 4, Rules 1 and 3 and Form 1 of the Rules. 

20.     The interveners point to the Supreme Court’s decision in Morauta v Pala (2016) SC1529, in which Sir Mekere Morauta, who filed a s 18(1) application in his capacity as chairman of the board of directors of PNG Sustainable Development Program Ltd,  was ruled to lack standing to challenge the constitutionality of the Mining (Ok Tedi Tenth Supplemental Agreement) Act 2013. One of the considerations the Court (Kandakasi J, Yagi J, Sawong J) took into account in determining that significant constitutional issues were not raised was the applicant’s failure to adhere to the manner and form requirements of the Supreme Court Rules. A s18(1) application is to be filed in form 1, which contains a requirement that the applicant “requests the Court to declare that the proper interpretation of Section … of (insert the Constitution and relevant section or name of a Constitutional Law and section) is”. The Court held:

By this prescription, an applicant in our view is required to specify the constitutional provision and in particular state the kind of declaration as to “the proper interpretation or application of” a specific constitutional provision that is being sought in the application. In other words, the Rules of the Court require an applicant under s 18(1) of the Constitution to not only state the constitutional provision that requires interpretation and or application but also and more importantly state the way in which it should be properly interpreted and or applied. If more than one constitutional provision requires proper interpretation and or application, each of them have to be clearly set out in the application itself first.

21.     The interveners argue that paragraph 3 of the present application fails to meet those requirements as it simply lists the relevant provisions of the Constitution and pleads without explaining how each provision operates that the “proper interpretation or application” of those provisions is that amongst other things the election of Mr Marape as Prime Minister is “unconstitutional, invalid and unlawful”. The interveners argue that by simply lumping up the various provisions of the Constitution the applicant has failed to invoke the jurisdiction of the Court.

22.     The problem with this argument is that it is a rehash of the same argument put to the Court recently in the hearing on the question of whether the applicant had standing (Application by Namah (2020) SC1932), and the argument was rejected. The Court stated: 

We consider that although the application could have more directly linked each of the constitutional provisions to a particular consequence, the propositions that the applicant proposes to advance at the hearing of the substantive application are sufficiently clear. The application meets the requirements of form 1 of the Rules as clarified in Morauta v Pala (2016) SC1529. 

23.     Though it was raised in a different context (the argument was advanced to support the interveners’ primary argument that the Court should decline to declare that the applicant had standing as he was not raising significant constitutional issues as those issues were vaguely pleaded in a manner that was non-compliant with the Rules), the argument put now as a ground of objecting to competency, is exactly the same argument as that which has been heard and rejected. The interveners have provided no good reason for the same argument being determined differently on this occasion. No attempt has been made to argue that the Court overlooked some fact or principle of law, which led it into error. We consider that the principles of issue estoppel apply here (Peter O’Neill v Nerrie Eliakim (2016) SC1522). The issue has been raised and determined in these proceedings. The interveners are estopped from raising the issue afresh without providing good reason to do so. They are having a second bite at the cherry.

24.     We confirm that the argument underpinning this ground of objection is rejected. Ground 3 of the objection is dismissed. 

GROUND 4: APPLICATION USED INCORRECT FILE REFERENCE AND WAS INCORRECTLY ENTITLED AS A “REFERENCE”

25.     The interveners argue that the application (a) used an incorrect file reference and (b) was incorrectly entitled as a “Reference”, and is therefore non-compliant with Order 4, Rule  1 and Form 1 of the Rules. 
(a)	The incorrect file reference argument

26.     The interveners say that the correct file reference, as borne out by Form 1 of the Rules, is “SCA”. However, both the original application and the amended application use the file reference “SCC (OS)”.

27.     The interveners are wrong. The Registrar issued Practice Direction (General) No 3 of 2014, on 20 June 2014, which stated that the case file code (or file reference) for “Supreme Court Constitutional Applications (Constitution, s 18(1))” is SCCOS. “SCC (OS)” is a minor variant of the correct reference.

28.     We acknowledge that the Rules in form 1 and also in Order 13, Rule 3, suggest that the file reference should be SCA. However, any requirement to use such a file reference has been overcome by the Practice Direction.

29.     No breach of the Rules has been proven. In any event, use of an incorrect file reference would not affect the competency of the application. 

(b)	The incorrect entitlement as “Reference” argument 

30.     The interveners argue that the introduction of the words “Reference by the Honourable Belden Norman Namah, MP in his capacity as the Leader of the Opposition” into the title of the proceedings is non-compliant with the requirements of Order 4, Rules 1 and 3 and form 1 of the Supreme Court Rules, and that the applicant has improperly and confusingly purported to invoke the jurisdiction of the Court, rendering the proceedings incompetent. The issues therefore become:

(i)	Is the application and the amended application non-compliant with the Rules?

(ii)	If yes, what are the consequences? Does it follow that the application is incompetent?

(i)	Is the application and the amended application non-compliant with the Rules?

31.     We first need to explain what the Rules require. Order 4 is entitled “Applications and References under the Constitution Sections 18 and 19”. It consists of 26 rules and two of them deal with the proper mode of commencement of proceedings under s18(1) of the Constitution. Order 4, Rule 1 states:

An application under ConstitutionSection 18(1) shall be instituted by an application in Form 1 and shall —

(a)	be entitled under Constitution Section 18(1) with the year and number of the reference [sic]; and,

(b)	be endorsed with —

(i)	the name of the person making the application;
(ii)	an application for a declaration that the applicant has standing to make the application;

(c)	be signed by the person making the application; and

(d)	be filed in the Registry.

32.     Order 4, Rule 3 states:

An application under Constitution Section 18(1) shall state —

(a)	the basis on which the applicant claims standing to make the application;

(b)	the Section of a constitutional law the applicant requests to have interpreted;

(c)	the answer or interpretation and relief for which the applicant contends;

(d)	the facts out of which the request arises;

(e)	whether a question of fact arises for determination by the Court on the application;

(f)	the names of the persons or bodies whose interests may be directly affected by the interpretation sought by the applicant.

33.     Form 1 is in the following terms:

GENERAL FORM OF APPLICATION (CONSTITUTION S 18(1))
IN THE SUPREME COURT                           SCA No. of 20
OF JUSTICE                                                   (Insert number and year)
                                                                        Application Pursuant to
                                                                        Constitution Section 18(1)
                                                                       Application by (Insert name 
                                                                       of person making application)
APPLICATION
To the Supreme Court:

APPLICATION TO INTERPRET SECTION… (insert Section number)… OF (Insert Constitution or the Name of the Constitutional Law)

1.	The applicant requests the Court to declare that the applicant has standing to make this application, and after that declaration, the finding sought in paragraph 3 below;

2.	The basis on which the applicant claims standing to make this application is:

3.	The applicant requests the Court to declare that the proper interpretation or application of Section… of… (Insert the Constitution and relevant Section or name of a constitutional law and Section) is:

4.	The facts out of which the request arises are:

5.	Whether a question of fact arises for determination by the Court on the application.  (If questions of fact need to be determined the Court may, in accordance with Order 3 Rule 3 direct a Judge to find the facts,  before the issue of constitutional interpretation is referred to the Supreme Court.)

6.	The names of the persons or bodies whose interests may be directly affected by the interpretation sought by the person making the application are: (insert names of persons whose interests may be affected, whether positively or adversely).

DATED:
                                                                        Sgd
                                                                        _______________________
                                                                        (To be signed by person
                                                                         making the application)
FILED BY:      (Form 17)
Application for Directions

Application will be made to a Judge of the Supreme Court Waigani at … a.m. on the day of … 20…
                                                                                ______________
                                                                                        Registrar
A Respondent or intervener may file a Statement of Response.

34.      As indicated earlier, this is how the original application filed on 23 September 2019 is entitled:

SCC (OS) No 4 of 2019

Application Pursuant to Constitution
Section 18(1)

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

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

35.     This is how the amended application filed on 4 November 2019 is entitled:

Application Pursuant to Constitution
Section 18(1)

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

In the matter of the Constitution Sections
11, 32, 41, 50, 59, 108, 114, 142 and 158(2)

36.     The body of both the original application and the amended application is set out in numbered paragraphs 1 to 6 in compliance with Form 1. The manner of setting out those paragraphs is non-contentious for present purposes. It is the entitlement of the proceedings that is contentious. It is clearly at variance with Form 1 in two respects.

37.     First, it states “Reference by the Honourable Belden Norman Namah, MP in his capacity as the Leader of the Opposition” when it should have stated “Application by the Honourable Belden Norman Namah, MP in his capacity as the Leader of the Opposition”.

37.     Secondly it further states “In the matter of the Constitution Sections
…”, when the form makes no provision for such a statement. 

38.     Does that mean that the application and amended application are non-compliant with the Rules? Yes. Are those documents defective? Yes. 

(ii)	What are the consequences of non-compliance with the Rules? Does it follow that the application is incompetent?

39.     Are the defects significant? Mr Sheppard for the applicant submitted no, the defects are insignificant in the context of the whole documents, which are otherwise compliant with the Rules. Mr Sheppard sought refuge in Order 1, Rule 8 of the Rules, which provides:

(a)	Subject to sub-rule (b) of this Rule:—

(i)	The forms in the First Schedule shall be used where applicable.
(ii)	It shall be sufficient compliance with any requirement of an Act or these Rules as to the form of any document if the document is substantially in accordance with the requirement or has only such variations as the nature of the case requires.
(iii)	A form in these Rules shall be completed in accordance with the directions, if any, contained in the form.

(b)	Where the citation of an Act stated in a form is subsequently altered, the citation as altered,  may be substituted for the citation of that Act in the form.

(c)	The forms referred to in Section 32(1) of the Act shall be those so numbered in the Second Schedule.

40.      Mr Sheppard submitted that both the original application and amended application are substantially in accordance with the requirements of Form 1, which is sufficient compliance according to Order 1, Rule 8(ii).

41.     We reject that submission. We consider that substantial compliance is not sufficient in the case of a person who seeks to invoke the original jurisdiction of the Supreme Court in constitutional matters, especially in a case of this nature. We endorse the submission of Mr Nale for the first intervener that strict compliance is especially necessary in a case in which an applicant is seeking to overturn the will of the Parliament as to which of its members ought to hold office as Prime Minister. 

42.     The principle of strict compliance with the Rules has been developed in the context of the filing of Special References under s 19 of the Constitution. There is a long series of cases in which references have been dismissed as incompetent for failure to meet the signing requirements of the Rules: SC Ref No 4 of 1987; Re Central Provincial Government and NCDIC [1987] PNGLR 249, SC Ref No 3 of 2006; Reference by Fly River Provincial Executive (2007) SC917, Special Reference by Morobe Provincial Executive (2010) SC1089, Application by Morobe Provincial Government (2012) SC1190.

43.     The principle of strict compliance has also been applied in a s 18(1) application involving the present applicant: Namah v Pato[2013] 1 PNGLR 205, a case in which the application was dismissed as incompetent due to it being signed by the applicant’s lawyer, rather than by the applicant, as required by the Rules, and also due to a wrong form being used. 

44.     The principle of strict compliance has also been applied in a case in which plaintiffs sought to invoke the original jurisdiction of the Supreme Court under s 57(1) (enforcement of guaranteed rights and freedoms) of the Constitution: Benham Satah & 301 Others v Rabura Mataio, Chief Migration Officer (2016) SC1548.

45.     We consider that the two respects in which the application and the amended application depart from the Rules are serious defects. The applicant has initiated proceedings which appear to be a reference of constitutional questions to the Supreme Court rather than an application under s 18(1) of the Constitution, which states:

Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

46.     It was clarified in Re Reference by Ken Norae Mondiai (2010) SC1087 (Injia CJ, Salika DCJ, Sevua J, Kirriwom J; Davani J dissenting) that s 18(1) confers jurisdiction on the Supreme Court to entertain a cause of action in a case which involves constitutional issues, brought by a private citizen who has the necessary standing to bring the proceedings. The majority adopted the approach taken in Application of Jim Kas, Governor of Madang (2001) SC670: Section 18(1) allows for prosecution of a cause of action based on issues of constitutional law, but does not authorise the commencement of a Supreme Court reference that raises hypothetical questions of constitutional law.

47.     Entitling these proceedings as a “Reference by the Honourable Belden Norman Namah, MP in his capacity as the Leader of the Opposition” and … “In the matter of the Constitution Sections …”, gives the appearance that Mr Namah is making a reference to the Supreme Court in his capacity as Leader of the Opposition and seeking the Court’s opinion on questions of constitutional interpretation or application.

48.     Constitutional references can only be made in two ways, under s 18(2) or s 19 of the Constitution. Section 18(2) states:

Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.
49.     Section 19 (special references to the Supreme Court) states:
(1)	Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.

(2)	An opinion given under Subsection (1) has the same binding effect as any other decision of the Supreme Court.

(3)	The following authorities only are entitled to make application under Subsection (1):—

(a)	the Parliament; and
(b)	the Head of State, acting with, and in accordance with, the advice of the National Executive Council; and
(c)	the Law Officers of Papua New Guinea; and
(d)	the Law Reform Commission; and
(e)	the Ombudsman Commission; and
(ea)	a Provincial Assembly or a Local-level Government; and
(eb)	a provincial executive; and
(ec)	a body established by a Constitutional Law or an Act of the Parliament specifically for the settlement of disputes between the National Government and Provincial Governments or Local-level Governments, or between Provincial Governments, or between Provincial Governments and Local-level Governments, or Local-level Governments; and
(f)	the Speaker, in accordance with Section 137(3) (Acts of Indemnity).

(4)	Subject to any Act of the Parliament, the Rules of Court of the Supreme Court may make provision in respect of matters relating to the jurisdiction of the Supreme Court under this section, and in particular as to—

(a)	the form and contents of questions to be decided by the Court; and
(b)	the provision of counsel adequate to enable full argument before the Court of any question; and
(c)	cases and circumstances in which the Court may decline to give an opinion.

(5)	In this section, "proposed law" means a law that has been formally placed before the relevant law-making body.

50.     The defects in the original application, repeated in the amended application, are material errors, which have created confusion at the outset as to the jurisdiction of the Court that the applicant was seeking to invoke. The Supreme Court has no power to entertain references (as distinct from applications) under s 18(1) of the Constitution. The interveners and more importantly the Court have been led into error on multiple occasions by referring to the proceedings as a “reference” and describing the applicant as a “referrer”. 

51.     We conclude that the applicant has not properly invoked the jurisdiction of the Supreme Court. In such situations in the past the approach of the Court has been to conclude that this is a matter that goes to the jurisdiction of the Court and renders the proceedings incompetent (Kawaso Ltd v Oil Search (PNG) Ltd (2010) SC1082, Rea Joseph v Manau Sereva (2011) SC1152, Steven Punagi v Pacific Plantation Timber Ltd[2011] 2 PNGLR 92). 

52.     It is settled law that such defects cannot be cured by any amendment. The decisions of this Court in many cases including Lucas Dekena v Nick Kuman (2018) SC1715(at paragraph 26) and James Lovika & 79 Others v Carl Malpo & The State (2019) SC1895 confirm that position. 

53.     We see no reason to depart from that approach. The consequence is that these proceedings are fatally flawed. The application is incompetent. We uphold ground 4(b) of the objection. 

CONCLUSION

54.     We have dismissed grounds 1, 2 and 3 of the objection. We have substantially upheld ground 4. The incorrect and confusing description of the proceedings as a reference renders the application incompetent, which means that the proceedings must be entirely dismissed. 

ORDER

(1)	The objection to competency is upheld.

(2)	The proceedings are entirely dismissed.

Judgment accordingly.
_____________________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant 	
Jema Lawyers:  Lawyers for the First Intervener
Nemo Yalo Lawyers:  Lawyers for the Second Intervener	
Wantok Legal Group:  Lawyers for the Third Intervener