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Parkop v O'Neill [2012] PGNC 57; N4741 (3 August 2012)

N4741

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 467 OF 2012

BETWEEN

HONOURABLE POWES PARKOP, MP
First Plaintiff

AND

HONOURABLE TOM OLGA, MP
Second Plaintiff

AND

HONOURABLE SAM BASIL, MP
Third Plaintiff

AND

HONOURABLE PETER O'NEILL in his capacity as caretaker Prime Minister
First Defendant

AND

HONOURABLE JEFFREY NAPE, outgoing Speaker of Parliament
Second Defendant

AND

SIR MICHAEL OGIO, as the Governor-General of PNG
Third Defendant)

AND

DON PANDAN, in his capacity as Clerk of Parliament
Fourth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Makail, J
2012: 02nd & 03rd August

PRACTICE & PROCEDURE - Application for interim injunction - Stopping of inaugural sitting of Parliament following General Election - Grounds of - Alleged breaches of process - Application made pursuant to inherent powers of the National Court - Constitution - Sections 155(4) & 158.

CONSTITUTIONAL LAW - Calling of Parliament - First sitting of Parliament following General Election - Day fixed for return of writs - Majority of writs returned - Meaning of - Constitution - Section 124 - Schedule 1.2.2 - Organic Law on National and Local-level Government Elections - Sections 81, 175 & 177 - Organic Law on the calling of Meetings of the Parliament - Section 1.

Cases cited:

Special Reference by Attorney General Francis Damem (2002) SC689

Counsel:

Mr G Sheppard, for 2nd & 3rd Plaintiffs
Ms T Twivey, for 1st Defendants
No appearance for 2nd, 3rd & 4th Defendants
Mr L Kandi, for 5th Defendant

RULING ON APPLICATION FOR INTERIM INJUNCTION

03rd August, 2012

1. MAKAIL, J: The plaintiffs seek an interim injunction to restrain the defendants from convening the first sitting of Parliament following the 2012 General election. The first sitting of the Parliament is scheduled to take place on Friday 03rd August 2012 at 10 o'clock in the morning which is today. The application is made pursuant to the inherent powers of the Court under section 155(4) and section 158 of the Constitution. At the hearing of the application, Mr Sheppard of counsel for the plaintiffs informed the Court that the first plaintiff has withdrawn instructions and will not be pursuing the case against the defendants. In the circumstances, leave is granted to the first plaintiff to be removed from the proceedings.

2. The second plaintiff is the current Governor and candidate for the Western Highlands Provincial seat in the 2012 General election and the third plaintiff is the member elect for Bulolo Open electorate. According to the affidavit of the second plaintiff filed on 01st August 2012, the time for the return of writs was 27th July 2012. By a notice published in the National Gazette on 27th July 2012, time was extended for the return of writs to 01st August 2012. This was because some electorates had not completed counting and writs returned for the successful candidates to the Electoral Commission to hand over to the Governor-General. By 01st August 2012, writs for the National Capital District Regional seat, Western Highlands Provincial seat and Enga Provincial seat were still not ready to be returned because counting was still in progress.

3. A further notice was published in the National Gazette on 31st July 2012 extending time for the return of writs from 01st August 2012 to 08th August 2012. This was to allow counting for the Western Highlands Provincial seat, National Capital Regional seat, Jiwaka Provincial seat, Enga Provincial seat, Chimbu Provincial seat and Eastern Highlands Provincial seat to be completed and writs for the successful candidates returned to the Electoral Commission to hand over to the Governor-General. Notwithstanding the extension of time, the Governor-General in consultation with the outgoing Prime Minister and Speaker fixed 10 o'clock in the morning of Friday 03rd August 2012 as the time and date for the 09th Parliament to meet for the first time after the 2012 General election.

4. Mr Sheppard submits that this case calls for the exercise of the Court's inherent power to stop the first sitting of the Parliament because if that is not done, great injustice will be caused to the electorates that have yet to have their writs returned to the Governor-General. It will mean, the member elect for each electorate will be unable to attend and participate in the first sitting of Parliament because counting of votes for each electorate is still progressing. He emphasises that attending the first meeting of Parliament is so critical because it is at that meeting that members elect a new Speaker and Prime Minister for the 09th Parliament. Excluding Jiwaka Province, five electorates stated in the National Gazette have yet to return the writs because counting is still in progress. These electorates will miss out on electing a Speaker and Prime Minister because they will have no members to represent them.

5. He further submits that the calling of the first meeting of Parliament is illegal and unconstitutional because section 124 of the Constitution and section 1 of the Organic Law on National and Local-level Government Elections ("OLN&LLG Elections"), require that all 111 writs be returned to the Governor-General before he can fix a date and time for the first sitting of Parliament. In his alternative submission, Mr Sheppard submits that the decision of the Governor-General to call the first meeting of Parliament when writs for five electorates are yet to be returned is harsh and oppressive and is not reasonably justifiable in a democratic society having a proper regard to the rights and dignity of mankind under section 41 of the Constitution.

6. Finally, he submits that the essence of the plaintiffs' application is to delay the first sitting of the Parliament and not to stop it. All the plaintiffs seek is to ensure that all writs for 111 members of Parliament are returned and then Parliament can convene its first sitting. There will be no serious prejudice or damage done if Parliament sitting is delayed for a few days until the writs for the remaining five electorates are returned.

7. Ms Twivey of counsel for the first defendant and supported by Mr Kandi of counsel for the fifth defendant counter these submissions by submitting that section 177 of the OLN& LLG Elections is unequivocal. In a case where the Head of State, acting with, and in accordance with, the advice of the Electoral Commission, extends time for the return of writs, the Electoral Commission shall endeavour to ensure that the "majority of the writs" in the general election are returned at least five days before the anniversary of the term of the current Parliament. Reading section 177 together with Schedule 1.2.2 of the Constitution, the phrase "the day fixed for the return of the writs for a general election" means "in any other case-the day by which the majority of the writs are to be returned."

8. That means that as long as majority of the writs are returned, the Governor-General is obliged to fix the time and date for the first sitting of Parliament. They rely on the decision of the Supreme Court in Special Reference by Attorney General Francis Damem (2002) SC689 to support their submission. For these reasons, the Governor-General has lawfully called the first meeting of Parliament and it should accordingly be convened.

9. They further submit the plaintiffs will suffer no real prejudice because there is no evidence that the second plaintiff will be declared the Governor of Western Highlands Province and will therefore be eligible to attend the sitting of Parliament. As for the third plaintiff, they submit he is a member elect and will automatically qualify to attend the sitting of Parliament. He has nothing to lose. In any case, the five remaining electorates are Regional and Provincial seats. The people of these provinces are and will be fairly represented by their open members at the first meeting of the Parliament to elect the Speaker and Prime Minister.

10. The plaintiffs bear the onus of satisfying the Court that there is a serious issue raised in this proceeding that requires a further consideration by the Court and that the balance of convenience favours the grant of the injunction. Finally, they must show that damages is not an adequate remedy.

11. The arguments of the parties turn on the correct construction of the provisions of the Constitution, OLN& LLG Elections and Organic Law on the calling of Meetings of the Parliament relating to the calling of the first sitting of Parliament following a General election. The question of a serious issue be tried is also dependent on the correct construction of the constitutional laws. The first matter to note is that the return of writs for the General election and the calling of the first sitting of Parliament following the General election are two separate constitutional processes. The former marks the end of the election process: section 175 of the OLN& LLG Elections and the latter marks the beginning of a new term of Parliament. However, they are connected because when one process ends, its starts the other.

12. As to the time the writs are to be returned, section 81 of the OLN& LLG Elections states that in a case of a General election, the same day shall be fixed for the commencement of the polling period in each electorate, and all writs shall be returned on the same day. Of course for practical reasons, it does not occur. That is why the Electoral Commission fixes different polling commencement dates for different electorates, provided that the date for the return of the writs is the same day for all electorates. Where special circumstances make it necessary, the Electoral Commission may return a writ after the date fixed for the return of writs.

13. This case is a bit peculiar because the Electoral Commission fixed 27th July 2012 as the date for all writs to be returned. Because counting was not completed in a number of electorates by that time, time was extended until 01st August 2012 pursuant to section 177(d) of the OLN& LLG Elections. By 01st August 2012, five electorates had yet to complete counting and return the writs. Time was further extended until 08th August 2012. At the same time, the Governor-General fixed the time and date for the first sitting of Parliament on 03rd August 2012.

14. Section 124 of the Constitution provides for the calling of Parliament. Subsection 1 states that "Parliament shall be called to meet not more than seven days after the day fixed for the return of the writs for a general election............." Subsection 2 states that "[a]n Organic Law shall make provision for the calling of the Parliament." The Organic Law is the Organic Law on the calling of Meetings of the Parliament. Section 1(1) of that Organic Law states that "[t]he Head of State shall, after consultation with the outgoing Prime Minister and Speaker, by notice published in the National Gazette after the date fixed for the return of the writs for the general election, fix the time and date in which the Parliament shall meet for the first time after a general election." Sub-section 2 states that "[t]he date fixed under Subsection (1) shall be not more than seven days after the date fixed for the return of the writs for the general election."

15. The phrase "the day fixed for the return of the writs for the general election" is not defined in section 1. It is defined in Schedule 1.2.2 of the Constitution. It means:

"(a) in a case of a general election where there is no extension of time for the return of any writ or the time for the return of all writs is extended – the day by which the writs are to be returned; and

(b) in any other case – the day by which the majority of the writs are to be returned."

16. I accept the submissions of the defendants that in a case where not all the writs are returned, the time and date the first meeting of the Parliament is fixed not more than seven days after the date fixed for the return of the majority of the writs for the General election. What is majority of writs returned is a matter for the Head of State to decide after having consulted the outgoing Prime Minister and Speaker under section 1 of the Organic Law on the calling of Meetings of the Parliament. It is arguable that the calling of the first meeting without all the writs being returned is unfair and will prejudice the right of those members yet to be declared elected to attend and participate in the first meeting of Parliament but the interpretation given by the defendants accords well with the scheme of things under section 124 of the Constitution and section 1 of the Organic Law on the calling of Meetings of the Parliament.

17. There may be instances where not all the writs are returned before the first sitting of Parliament. In such cases, extension of time is given for the remaining writs to be returned but the Parliament cannot wait. It must move on and convene its first sitting so long as majority of the writs are returned. The key phrase in Schedule 1.2.2 of the Constitution is "in any other case". This phrase is not defined in the Constitution or the Organic Laws but in my view is wide enough to cover cases where the Electoral Commission has declared an election in an electorate or electorates a failure under section 97 of the OLN& LLG Elections or where the counting is still in progress as in this instance.

18. The Supreme Court case of Special Reference by Attorney General Francis Damem (2002) SC689 is on point. This special reference arose from disturbances and interference with the election process in Enga and South Highlands Provinces in the 2002 General election which delayed the return of writs for the electorates and resulted in the extension of time for the return of the writs from 15th July 2002 to 29th July 2002. The Electoral Commission also foreshadowed the possibility of failure of elections in some electorates. One of the questions posed by the Attorney General for the Supreme Court's opinion was whether the National Parliament was constitutionally required to meet within seven days as and from 29th July 2002, notwithstanding that there may be up to fifteen vacancies in respect of those electorates in the Enga and Southern Highlands Provinces where no candidate was returned as elected. The Supreme Court answered in the affirmative. It held that Schedule 1.2.2 of the Constitution provides that the day fixed for the return of the writs is the date "by which the majority of the writs are returned". That day was 29th July 2002.

19. For these reasons, I am not satisfied that the plaintiffs have established that there is a serious question to be tried which requires further consideration by the Court. For the same reasons, I am not satisfied that the decision of the defendants in calling the first meeting of Parliament when five electorates have yet to return the writs is harsh and oppressive. Similarly, I am not satisfied that it is not reasonably justifiable in a democratic society having a proper regard to the rights and dignity of mankind under section 41 of the Constitution.

20. With regards to the balance of convenience consideration, the second and third plaintiffs' claim that they represent interest of the people of their respective electorates and more particularly the province. The second plaintiff claims that his right to stand for elective public office and take part in the conduct of public affairs such as voting for the Speaker and Prime Minister in the 09th Parliament under section 50 of the Constitution will be infringed if the Parliament sits. As for the third plaintiff, he is the member elect for Bulolo Open electorate. He claims that as a member of Parliament and leader, his interest is to ensure that the laws relating to the calling of meetings of Parliament are not breached or circumvented by the defendants so as to defeat the whole democratic process of electing a new Government after this year's General election. I am satisfied the plaintiffs have an interest in this matter but as I have found, the calling of the first meeting of Parliament is within the provisions of the Constitution and the relevant Organic Laws.

21. Equally important is the public interest. Public interest dictates that a new Government must be formed without further delay so as to bring stability and direction for the country after the General election. This is a critical period of time for not only the members of Parliament but the whole of Papua New Guinea and any further delay will jeopardise the opportunity that the majority of the members elect seek to do after the elections. On behalf of the people, they must decide who will be the Government and who will lead the country. Weighing up these two competing interests, I find the interest that the defendants represent at this point in time, outweighs the interests of the plaintiffs.

22. For all these reasons, I refuse the application for interim injunction with costs.

Ruling accordingly.

____________________________________

Young & Williams Lawyers: Lawyers for Second & Third Plaintiffs
Twivey Lawyers: Lawyers for First Defendant
Solicitor-General: Lawyers for Fifth Defendant