Application by the Honourable Peter O'Neill, MP [2023] PGSC 131; SC2481 (24 August 2023)

	Home \| Databases \| WorldLII \| Search \| Feedback Supreme Court of Papua New Guinea

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)
APPLICATION BY THE HONOURABLE PETER O’NEILL, MP

AND:
SIMON SINAI, ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Fifth Intervener

PRACTICE AND PROCEDURE – taking of evidence pursuant to a direction of the Supreme Court by a single Judge of the Supreme Court upon any issue of fact for the determination of the proceedings and state those facts as found by the single Judge – Supreme Court Rules, Order 3 Rule 3.

Cases Cited:
Application by Francis Gem to Enforce Constitutional Rights [2010] SC1065
In re Reference by East Sepik Provincial Executive [2011] SC1133
In re Reference to Constitution section 19(1) by East Sepik Provincial Executive [2011] SC1154

Legislation cited:
Constitution
Organic Law on the Calling of Meetings of the Parliament
Organic Law on the Integrity of Political Parties and Candidates
Supreme Court Rules 2012

Counsel:
G. J. Sheppard, for the Applicant
D. Mel, for the First Intervener
D. Steven, for the Second Intervener
S. Tongela, for the Third Intervener
S. Ranewa, for the Fourth Intervener
P. Kuman, for the Fifth Intervener
N. Kopunye, for the Sixth Intervener

TAKING OF EVIDENCE AND PROVISION OF STATEMENT OF FACTS FOUND BY SINGLE JUDGE TO THE SUPREME COURT

1. DAVID, J: INTRODUCTION: On 8 August 2022, the Further, Further Amended Application (the Application) was filed on behalf of the Applicant, the Hon. Peter O’Neil MP (the Applicant pursuant to s.18(1) of the Constitution. The Applicant requests the Supreme Court for interpretation of certain provisions of the Constitution and specified Constitutional Laws including the Organic Law on the Calling of Meetings of the Parliament and the Organic Law on the Integrity of Political Parties and Candidates.

2. On 13 July 2023, I was directed by the Supreme Court as a single Judge of the Supreme Court under Order 3 Rule 3 of the Supreme Court Rules 2012 to conduct a hearing for the purposes of taking evidence concerning facts that are disputed as deposed to in the affidavits filed and as detailed in a Statement of Agreed and Disputed Facts as agreed to by all the parties within 7 days from 13 July 2023 and to state the facts as I find them arising from the Application. I was also directed by the Supreme Court to provide my Statement of Facts concerning the disputed facts by or before 30 August 2023.

“Upon the direction of the Court, either on the application of a party to the proceedings or of its own motion, a single Judge may take evidence upon any issue of fact for the determination of the proceedings and state those facts as found by him, and the Court may act upon such statement of facts so far as it thinks fit to adopt it.”

4. The rationale behind the procedure under Order 3 Rule 3 was explained by the Supreme Court in Application by Francis Gem to Enforce Constitutional Rights [2010] SC1065 where the Supreme Court considered and adopted the practice of the Supreme Court of the United States of America that the Supreme Court is not well-suited in the exercise of its original jurisdiction to conducting a trial on and determining disputed facts and the task would be more effectually taken on by a single Judge: see also In re Reference by East Sepik Provincial Executive [2011] SC1133.

5. In Application by Francis Gem to Enforce Constitutional Rights [2010] SC1065 at Headnote 1, the Supreme Court said:

“The Supreme Court can direct a single Judge to take evidence pursuant to Order 3 Rule 3 Supreme Court Rules. Notwithstanding that the wording of the Rule permits a Judge of the Court that gives the direction to be so directed, the Judge to be directed, who shall be a Supreme Court Judge, should be someone other than any of the Judges constituting the Court that gives the direction, to avoid issues of prejudice.”
6. In Application by Francis Gem to Enforce Constitutional Rights [2010] SC1065 at [10]-[12], the Supreme Court said:

“10. We are of the view that if this Court directs a single Judge to take evidence pursuant to Order 3 Rule 3, although the wording of the Rule permits a Judge of this Court that gives the direction to be so directed, the Judge to be directed, who shall be a Supreme Court Judge, should be someone other than any of the Judges constituting the Court that gives the direction.

11. This will avoid issues of prejudice of the Judge so directed for amongst others, forming a view of the proceedings before the Supreme Court hears argument by having a more detailed knowledge of the proceedings by virtue of taking the evidence and making factual findings.

12. It also ensures that each of the Judges constituting the Court equally hear the proceedings. This would not be the case if one of the Judges had already taken evidence and made factual findings.”
7. The criteria to be applied for adopting facts in a trial conducted under Order 3 Rule 3 of the Supreme Court Rules 2012 was referred to in In re Reference to Constitution section 19(1) by East Sepik Provincial Executive [2011] SC1154 at [15]-[16] where Injia CJ said:

“15. The criteria for adopting those facts is that the findings must be open on the evidence before the trial Judge. Those facts must be relevant to or have a bearing on the constitutional issues before the Court. With regard to procedural matters relating to admissibility of evidence and credibility of witnesses, this Court almost invariably will defer to the trial Judge's findings on those matters.

8. A Statement of Agreed and Disputed Facts endorsed by the parties dated 20 July 2023 was filed on 21 July 2023 (Doc 215). There were 41 agreed facts and 15 disputed facts. At the hearing conducted on 4 August 2023, after evidence was taken, the parties agreed to take a short adjournment to discuss the disputed facts further prior to the hearing of submissions. I agreed to the suggestion and adjourned the matter to the latter part of the day and to reconvene at 2:30 pm. When the Court reconvened, I was informed initially by Mr. Sheppard of counsel for the Applicant and later affirmed by counsel for each intervener that, except for the Second Intervener, Peoples’ National Congress Party Inc., all the other parties had decided to either agree to or not contest the disputed facts. Consequently, a copy of a Statement of Agreed and Disputed Facts dated 4 August 2023 (the Amended Statement of Agreed and Disputed Facts) containing the amendments reflecting the parties’ agreement or positions taken was handed up for the Court’s consideration.

9. The parties generally agreed that notwithstanding the turn of events with regard to the disputed facts and that the Third and Fifth Interveners suggested that it was now not necessary to make submissions, I was urged by the other parties to consider the written submissions filed and the evidence adduced especially on the question of relevance and the Court should only confine itself to the making of findings of fact in accordance with Order 3 Rule 3 of the Supreme Court Rules.

10. I have decided that I will consider the evidence that has been presented to the Court and the parties’ submissions in making my findings of fact in relation to the disputed facts taking into consideration the facts contained in the Amended Statement of Agreed and Disputed Facts. Given this, my approach will be that it will not be necessary to summarise the evidence, but I will refer to the evidence supporting my findings.

12. The First Intervener, Attorney-General of Papua New Guinea relies on and reads the following materials:

13. The Second Intervener, People’s National Congress Party Inc. did not file any affidavit. Mr. Steven of counsel for the Second Intervener said the Second Intervener will rely on the affidavits filed by the Applicant, the affidavits that have been filed by the other Interveners and the facts in the Amended Statement of Agreed and Disputed Facts.

14. The Third Intervener, PANGU Pati Inc. relies on and reads the following materials:

15. The Fourth Intervener, Job Pomat, Speaker of the National Parliament relies on and reads the following materials:

16. The Fifth Intervener, Simon Sinai, Electoral Commissioner of Papua New Guinea relies on and reads his own affidavit which was sworn on 25 February 2023 and filed on 27 February 2023 (Doc 110) (Exhibit ELCA).

“I verily belief (sic) that the Head of State, after consulting with the Prime Minister and the Speaker of Parliament, fixed 9^th August 2022 as the date when Parliament would first meet, which was published in the National Gazette No.G600 dated 1^st August 2022.

Annexed hereto and marked with the letter “SS-7” is a true copy of the National Gazette No.G600 dated 1^st August 2022.”

20. The agreed facts contained in the Amended Statement of Agreed and Disputed Facts are these:

21. The disputed facts contained in the Amended Statement of Agreed and Disputed Facts will be tabulated with columns for each item of the disputed facts, reference to evidence supporting the facts and findings.

Item	Disputed facts	Reference	Findings
1.	The Applicant entered Parliament after the 2002 General Elections	Paras 21 & 22, Affidavit of E. Pok, Ex REGA	Agreed by all Interveners except the Second Intervener. It is not contested by the Applicant. The fact is correct.
2.	The Parliament passed the Organic Law on the Integrity of Political Parties and Candidates 2000 which came into effect on 23 February 2002.	Paras 5 & 6, Affidavit of M. Akop, Ex AGA	Agreed by all Interveners except the Second Intervener. It is not contested by the Applicant. The fact is correct.
3.	By National Gazette No.G142 of 2003 published on 30 October 2003, the Organic Law on the Integrity of Political Parties and Candidates 2003 (as certified by the Speaker of Parliament on 15 October 2003) (OLIPPAC 2003) came into effect. The OLIPPAC 2003 repealed and replaced the OLIPPAC 2000.	Para 7 and annexure “A”, Affidavit of M. Akop, Ex AGA	Agreed by all Interveners except the Second Intervener. It is not contested by the Applicant. The fact is correct.
4.	By National Gazette No.G182 published on 12 May 2014, the Government proposed to alter the OLIPPAC 2003. The proposed alteration included alteration to s.63.	Para 11 and annexure “C”, Affidavit of M. Akop, Ex AGA	Agreed by all Interveners except the Second Intervener. It is not contested by the Applicant. The fact is correct.
5.	By National Gazette No.595 published on 24 August 2016, a Corrigendum was published to delete s.63(8) & (9) and s.64 of the proposed alterations to the OLIPPAC 2003 as published on 12 May 2014 in National Gazette No.G182. The proposed alterations have not yet been passed by Parliament.	Paras 12 & 13 and annexure “D”, Affidavit of M. Akop, Ex AGA	Agreed by all Interveners except the Second Intervener. It is not contested by the Applicant. The fact is correct.
6.	In the current OLIPPAC 2003, there is no provision as s.63(4)(a) and s.63(4)(b). Subsections (5) and (6) of s.63 refer to subsection (4)(a) and (b) of s.63, however, there is no paragraph (a) or (b) in subsection (4). There is only subsection (4). This is an error which needs to be corrected. Similar provision (Invitation to form Government) in the repealed OLIPPAC 2000, in s.76(4), has paragraphs (a) and (b). It is an error brought forward from this repealed law.	Paras 14-17, Affidavit of M. Akop, Ex AGA	Agreed by all Interveners except the Second Intervener. It is not contested by the Applicant. The fact is correct.
7.	The Supreme Court decision delivered (by Injia CJ, Salika DCJ (as he then was), Sakora J, Kirriwom J & Gavara-Nanu J) in proceedings SC Ref No.11 of 2008 – Special Reference by Fly River Provincial Executive, re: OLIPPAC (2010) (hereon referred to as “Fly River Decision”). Fly River Decision addressed issues over the constitutionality of amendments to the Constitution and provisions of the Organic Law on the Integrity of Political Parties and Candidates (hereon referred to as “OLIPPAC”). The provisions of OLIPPAC referred to by the Supreme Court decision were sections 57 to 73 of the OLIPPAC.	Paras 7-15, Affidavit of M. Worinu, Ex REGB. Paras 4-6, Affidavit of N. Kopunye, Ex REGC.	Agreed by all Interveners except the Second Intervener. It is not contested by the Applicant. The fact is correct.
8.	In the Fly River Decision, the summary of the case and the findings of the Supreme Court were: Facts: The Executive of the Fly River Provincial Government filed a Special Reference under s.19 of the Constitution seeking the Supreme Court’s opinion on the interpretation and application of various provisions of the Constitution and the Organic Law on the Integrity of Political Parties and Candidates (OLIPPAC). Held: General questions – Question 6 & 17: Except to the extent that s.50(1)(e) (qualified right) of the Constitution is affected by amendments made to ss.12, 111, 127 and 130 of the Constitution, those amendments are authorized by the Constitution. To the extent that those amendments of the Constitution restrict and prohibit the exercise of the right given to Members of Parliament by s.50(1)(e) of the Constitution, they are inconsistent with the existing qualification under s.50(2) and are therefore of no force and effect. Except to the extent that OLIPPAC provisions, the subject of this reference restrict the exercise of s.50 right, OLIPPAC complies with the formal requirements of s12, s127 and s130A of the Constitution. Specific questions: Question 7: Yes. OLIPPAC, s 57 is unconstitutional. Question 8: Yes. OLIPPAC, s 58 is unconstitutional. Question 9: Yes. OLIPPAC, s 59 is unconstitutional. Question 10: Yes. OLIPPAC, s 60 is unconstitutional. Question 11: Yes. OLIPPAC, s 61 is unconstitutional. Question 12: Yes. OLIPPAC, s 69 is unconstitutional. Question 13: Yes. OLIPPAC, s 70 is unconstitutional. Question 14: Yes. OLIPPAC, s 72 is unconstitutional. Question 15: Yes. OLIPPAC, s 73 (1) (b) is unconstitutional. Question 16: Yes. OLIPPAC, s 81 is unconstitutional. The answers given to questions 6 to 17 also affect other provisions of the Constitution and OLIPPAC that are not mentioned in the Reference but are directly related to those provisions. The effect of the answers given to the questions in the Reference is that those provisions are also rendered invalid. Those provisions are as follows: Constitution, ss12(4) and 114, only to the extent that they authorise an Organic Law to restrict and prohibit the exercise of a Member of Parliament’s right under s 50 (1)(e) of the Constitution. OLIPPAC, ss 65, 66, 67, 70(3), 72(2) and 73(1)(a) & (2).	Paras 7-15, Affidavit of M. Worinu, Ex REGB. Paras 4-6, Affidavit of N. Kopunye, Ex REGC.	Agreed by all Interveners except the Second Intervener. It is not contested by the Applicant. The fact is correct.
9.	27 July 2012 was the time appointed for the return of the writs for the 2012 General Elections. The time for the return of the writs was extended to 1^st August 2012. The reason for the extension was that some electorates had not completed counting.	Paras 16-19, Affidavit of M. Worinu, Ex REGB. Paras 4-6, Affidavit of N. Kopunye, Ex REGC.	Agreed by all Interveners except the Second Intervener. It is not contested by the Applicant. The fact is correct.
10.	On 31 July 2012, the time for the return of writs was further extended to 8 August 2012. Notwithstanding the extension, the Governor General after consultation with the outgoing Prime Minister (the Applicant) fixed 3 August 2012 as the date for the first sitting of Parliament after the 2012 General Elections. Hon. Powes Pakop and Hon. Tom Olga and Hon. Sam Basil commenced proceedings OS No.467 of 2012 against Hon. Peter O’Neill and Ors over the appointment of the first sitting of Parliament.	Paras 16-19, Affidavit of M. Worinu, Ex REGB. Paras 4-6, Affidavit of N. Kopunye, Ex REGC.	Agreed by all Interveners except the Second Intervener. It is not contested by the Applicant. The fact is correct.
11.	On 3 August 2012, the application for interim injunctive relief was refused by the National Court in OS No.467 of 2012. Parliament proceeded to sit on the same day (3 August 2012) and the Applicant was elected Prime Minister (despite not all seats in Parliament being declared).	Paras 16-19, Affidavit of M. Worinu, Ex REGB. Paras 4-6, Affidavit of N. Kopunye, Ex REGC.	Agreed by all Interveners except the Second Intervener. It is not contested by the Applicant. The fact is correct.
12.	On 2 August 2017, the Applicant was elected as Prime Minister pursuant to s.63 of the OLIPPAC.	Paras 16-18, Affidavit of K. Aufa, Ex AGB.	Agreed by all Interveners except the Second Intervener. It is not contested by the Applicant. The fact is correct.
13.	On 28 July 2017, the Ombudsman Commission filed proceedings SC Ref No.4 of 2017. The Supreme Court extended the date for the return of writs for the remaining writs to 31 July 2017. The Applicant as the Prime Minister was the Second Intervener in SC Ref No.47 of 2017.	Paras 20 and 21, Affidavit of M. Worinu, Ex REGB. Paras 4-6, Affidavit of N. Kopunye, Exhibit REGC.	Agreed by all Interveners except the Second Intervener. It is not contested by the Applicant. The fact is correct.
14.	On 27 February 2019, the Supreme Court delivered its decision in SC Ref No.4 of 2017 on the questions raised. The Supreme Court held, inter alia, in general as follows: (2) The Electoral Commission has a wide and unfettered discretion by virtue of Schedule 1.2 (1) of the Constitution to extend the return date for writs as many times as is required provided such extension do not exceed the “fifth anniversary of the day fixed for the return of the writs for the previous general election” and the time periods stipulated under s.124 (1) of the Constitution for Parliament to convene after the elections. Effectively overruled in part the decision in SCR 4 of 2012; Special Reference Pursuant to Constitution Section19; Reference by Francis Damem, Attorney-General for the Independent State of Papua New Guinea (2002) SC689. (5) For the purposes of s.105 and Sch.1.2(1) of the Constitution and s.177(2) of the Organic Law on Elections, the word “majority” means more than one half of the whole number. Applying that to the current Parliament with 111 total Members of Parliament means 56 Members of Parliament.	Paras 20 and 21, Affidavit of M. Worinu, Ex REGB. Paras 4-6, Affidavit of N. Kopunye, Exhibit REGC	Agreed by all Interveners except the Second Intervener. It is not contested by the Applicant. The fact is correct.
15.	On 1 August 2022, apart from Gazette No.G600, the Electoral Commissioner is not aware of any other notice issued to Members of Parliament in relation to the meeting of Parliament on 9 August 2022.	Para 24 and annexure SS7, Affidavit of S. Sinai, Exhibit ELCA and cross-examination of S. Sinai on 4 August 2023.	Agreed by the Applicant and Second Intervener. It is not contested by the Interveners. The fact is correct.

22. My task in making my findings on the disputed facts has been made easier by the cooperation of the parties with the presentation of the Amended Statement of Agreed and Disputed Facts. All 15 disputed facts have been determined to be correct. I am of the respectful view that the facts are relevant to or have a bearing on the determination of the proceedings. I now present my findings to the Supreme Court in accordance with Order 3 Rule 3 of the Supreme Court Rules 2012.

Supreme Court of Papua New Guinea

Application by the Honourable Peter O'Neill, MP [2023] PGSC 131; SC2481 (24 August 2023)