SC1831

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: May 21st  

Application to Intervene by Hon. Patrick Pruaitch

Cases Cited: 

SCR No 2 of 1981 [1981] PNGLR 150
Ume More v. UPNG [1985] 401
Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1156 
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. Patrick Pruaitch (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 he has an interest in the subject matter of the Special Reference. 

Jurisdiction

5. The applicant has already made an application to intervene in this Special Reference and that application was refused on 18th March 2019. Order 11 Rule 25 Supreme Court Rules provides that a party dissatisfied with a direction or order given by a Judge under these Rules, may apply to the Court which may make such orders as appear just. Such an application must be filed and served within 21 days of the making of such direction or order. Apart from Order 11 Rule 25, there is no provision in the Supreme Court Rules which provides that a second application to intervene may be made.

6. The present application was not filed within the requisite 21 days.

7. 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. Counsel conceded that although it was the applicant’s argument that the proposed motion of no confidence constituted a change of circumstances, and that was the basis upon which the application had been brought, the withdrawal of the motion of no confidence resulted in there not being a change in circumstances.

8. Counsel for the applicant further submitted that this Court has inherent power and that s. 155(4) Constitution was sufficiently wide for this court to grant the application to intervene.

Consideration

9. Order 11 Rule 25 Supreme Court Rules has not been complied with as the application to intervene has not been brought within 21 days as it was required to be, given the refusal of the applicant’s first application to intervene. It will be refused on this basis. Notwithstanding this, as there is no change of circumstances, the applicant cannot successfully argue that his application should be heard on this basis. His application, to the extent that it relies upon Order 4 Rules 21 and 22 Supreme Court Rules, was preceded by the first application which was refused, and should be dismissed as an abuse of process.

10. 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.
11. 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).”

12. 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. 

13. In our view, Order 4 Rules 21 and 22 provide the jurisdiction for the order and the remedy that the applicant seeks. Order 11 Rule 25 provides for an application to be made to the Court where a party is dissatisfied with a direction or order given by a Judge so long as the application is made within 21 days. The applicant did not avail himself of this Rule. For this court to grant the relief that he seeks pursuant to s. 155(4) Constitution would be inconsistent with remedies that are already provided. Consequently this application should be dismissed.

Orders

14. The Court orders that:

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

b)	Hon. Patrick Pruaitch shall pay the costs of the referrer, the first intervener and 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