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Papua New Guinea in the SUPREME COURT of JUSTICE

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Papua New Guinea in the SUPREME COURT of JUSTICE Papua New Guinea IN THE SUPREME COURT OF JUSTICE AT WAIGANI SC REF NO.3 OF 2011 BETWEEN: REFERENCE PURSUANT TO CONSTITUTION SECTION 19 AND: REFERENCE BY THE EAST SEPIK PROVINCAL EXECUTIVE -Referor- AND: HON. DR ALLAN MARAT, MP as the Minister for Justice and Attorney General -First Intervenor- AND: HON. JEFFERY NAPE MP, as Speaker of Parliament -Second Intervenor- AND: THE OMBUDSMAN COMMISSION OF PAPUA EW GUINEA -Third Intervenor- AND: HON. SAM ABAL MP -Fourth Intervenor- AND: HON. PETER O'NEILL MP, as Prime Minister of Papua New Guinea -Fifth Intervenor- AND: HON . BELDEN NAMAH MP, as the Deputy Prime Minister of Papua New Guinea -Sixth Intervenor- i AND: NATIONAL ALLIANCE INC. -Seventh Intervenor- AND: GRAND CHIEF SIR MICHAEL SOMARE MP -Eighth Intervenor- Waigani: Injia, CJ; Salika Dep.CJ; Sakora, Kirriwom & Gavara-Nanu JJ 2011: December 12th Special Reference (s 19 (3)(b) of the Constitution – Removal of Prime Minister – Appointment of Prime Minister – Removal of Member of Parliament for absence on three consecutive sittings of Parliament- Constitution, s 142, s 104, s 135. FACTS Prime Minister Sir Michael Somare was absent from the country and in Singapore from 24th March 2011 to 26th August 2011 for medical treatment. During that time there were 3 meetings of the Parliament in May June and August. Sir Michael had leave of the Parliament to be absent from the May meeting. On 2nd August 2011 Parliament passed a motion declaring that there was a vacancy in the office of Prime Minister and immediately thereafter elected the Hon Peter O’Neill as Prime Minister. There was a further meeting of the Parliament in September and Sir Michael attended that meeting on 6th September. Subsequently on that day the Speaker declared that Sir Michael Somare had lost his seat in Parliament by virtue of having been absent from Parliament without leave for 3 consecutive sittings of the Parliament. HELD Injia CJ, (views of Sakora J to be inserted later) Kirriwom J and Gavara-Nanu J (Salika DCJ dissenting) 1. The occasions and methods for removing a Prime Minister are restricted to those specified in constitutional laws; ii 2. Sir Michael Somare was not lawfully removed from office as Prime Minister; Injia CJ, Salika DCJ, (views of Sakora J to be inserted later), Kirriwom J and Gavara Nanu J: 3. A Prime Minister can only be elected on the day following the Speaker’s advice to Parliament that there is a vacancy in the office of Prime Minister. 4. Mr Peter O’Neill was not lawfully elected as Prime Minister, the election was unconstitutional and invalid; 5. The National Court has exclusive jurisdiction as to whether the seat of a member has become vacant by reason of facts arising under Section 104(2)(d) of the Constitution; 6. The declaration made by the Speaker on 6th September 2011 that Sir Michael Somare had lost his seat by reason of being absent from Parliament for three consecutive meetings of Parliament pursuant to Section 104(2)(d) of the Constitution is unconstitutional and invalid. 7. The meaning of “person of unsound mind” in Section 103(3)(b) of the Constitution is the meaning given by Section 81 of the Public Health Act Chapter 226 NOTE: The questions raised in the Reference and the answers of the members of the Court appear at the end of the judgment. PNG Cases cited: Alois Kingsly Golu v National Executive Council [2011] PGNC 134;N4425 Application by Francis Gem (2010) SC 1065 Avia Aihi v The State (No.1) [1981] PNGLR 81 Burns Philp v The State & Ors [1989] PGNC 24, N769 Constitution:Application by Gabriel Dusava (1998) SC581; iii Derbyshire v Tongia [1984] PNGLR 148 Douglas Charles Dent v Thomas Kavali [1981] PNGLR 488 Ex parte Moses Sasakila [1976] PNGLR 491 Hagai Joshua v Aron Meya [1998-89] PNGLR 188 Haiveta v Wingti (No. 3) [1994] PNGLR 197 Haivila Kavu v Mark Maipakai [201[ PGNC 82; N4094 In re Election of the Governor General (2010) SC 1085 Isidore Kaseng v Namaliu and The State [1995] PNGLR 481 James Mopio v The Speaker [1977] PNGLR 420 Kaguel Koroka v Phillip Kapel & Ors [1985] PNGLR 117 Kaseng v Namaliu [1995] PNGLR 481 Kekedo v Burns Philp (PNG) Ltd [1988 – 89] PNGLR 122, Kila Wari and others v Gabriel Ramoi and Another [1986] PNGLR 112, Launa v Alphonse Willie (2004) N2595 Lionel Gawi v The State (2006) SC850, Matter Pursuant to Section 18(1) of The Constitution, Southern Highlands Provincial Government v Sir Michael T Somare; Sir Matiabe Yuwi v Sir Michael T Somare (2007) SC854 Mauga Logging Company Pty Ltd v South Pacific Oil Palm Development Pty. Ltd (No.1) [1977] PNGLR 80 Minister for Lands v Frame [1980] PNGLR 433 Morobe Provincial Government v Minister for Village Courts & The State (1994) N1215, Motor Vehicles Insurance (PNG) Trust v Reading [1988] PNLR 608 NCDIC v Crusoe Pty Ltd [1993] PNGLR 139 New Guinea Cocoa (Export) Pty. Ltd v Basis Vedbaek [1980] PNGLR 205 Paul Kipo v Rova Maha [1994] PGNC 15;N1252 Peter Makeng & Ors v Timbers (PNG) Limited N3317 Premdas v The State [1979] PNGLR 329. Public Prosecutor v John Aia of Mondo and Peter Pino of Idu [1978] PNGLR 224 Public Service Commission v Independent State of Papua New Guinea [1994] PNGLR 603 Re Election of Governor General; Reference by Morobe Provincial Executive (2010) SC 1085 Re Election of Governor–General (No 1) (2003) SC721 Re Election of Governor–General (No 2) (2004) SC728 Re Election of Governor-General (No 3) (2004) SC752 Re Election of Governor-General (No 4) (2004) SC773 Re Joseph Auna [1980] PNGLR 500 Re Reference by Ken Norae Mondiai (2010) SC1087 Re Sitting Days of the Parliament and Regulatory Powers of Parliament (2002) SC722 iv Reference by the Ombudsman Commission of PNG (2010) SC 1027 Reference by the Ombudsman Commission of PNG (2010) SC1058 Rundle v MVIT [1987] PNGLR 44 Rundle v MVIT [1988] PNGLR 20 Safe Lavao v The Independent State of Papua New Guinea [1978] PNGLR 15 SC Ref by Ombudsman Commission re Amendments to Forestry Act (2010) SC 1088. SC Reference No 4 of 1990 Special Reference Pursuant to Section 19 of the Constitution in the Matter of a Reference By The Acting Principal Legal Adviser Re Meeting of Parliament [1994] PNGLR 141 SCR No 1 of 1992; re Constitutional Amendment No 15 [1992] PNGLR 73 SCR No 2 of 1992; Reference by the Public Prosecutor [1992] PNGLR 336; SCR No 3 of 1999:Re Calling of the Parliament [1999] PNGLR 285 SCR No. 1 of 1997 Re s 19 of the Constitution Reference by the Principal Legal Advisor [1998] PNGLR 453 SCR No. 2 of 1982; Re Kunangel [1991] PNGLR 1 Special Reference by Fly River Provincial Executive, re Organic Law on Integrity of Political Parties and Candidates (2010) SC 1057 The Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417 The State v The Independent Tribunal; Ex parte Sasakila [1976] PNGLR 491 Titi Christian v Rabbie Namaliu (1996) OS No 2 of 1995, Unreported and Unnumbered Judgement of Amet CJ, Kapi Dep CJ, Salika , Doherty & Andrew JJ dated 18 July 1996 Titus Taber v Keran Rimbao (1998) N1767 Tom Korea v Sepoe Karawa [1989] PGNC 33; N791 Overseas case cited: Armstrong v Budd (1969) 71 SR (NSW) 386 Beswick v Beswick [1968] AC 58 Boettcher v Boettcher [1948] 8 St R Qd 74 Bryan v Arthur 11 A & E 117 Cosham v Cosham (1899) 5 ALR 291; Ex parte Cranmer (1806) 12 Ves 445; 33 ER 168; Hanbury v Hanbury (1892) 8 TLR 559, CA. Howard v Bodington (1877) 2 P. D. 203 J v J [1957] VR 523; [1957] ALR 1017; Kirby v Leather [1965] 2 All ER 441 M’Naghten’s Case (1843) [1843-60] All ER Rep 229;(1843) 8 ER 718 Murphy v Doman [2003]58 NSWLR 51 Nelsovil v Minister of Housing (1962) 1 All E.R. 423 v Owners-Strata Plan No.23007 v Cross – in the matter of Cross [2006] FCA 900 Pepper v Hart [1993] AC 593; [1993] I All ER 42; Poynton v Walkey [1951] SASR 191, R v S (1979) 2 NSWLR 1 Re Barnsley (1944) 23 Atk. 168; 36 ER 899). Re Holmes (1827) 4 Russ 182; 38 ER 774; Regina v Secretary for State for Transport, Ex parte Factortame Ltd and Others (No. 5) [2000] 1 AC 524 Ridgeway v Darwin (1802) 8 Ves 65; ER 275 SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 Warner v Metropolitan Police Commander [1969] AC 256 PNG Statutes & Subordinate legislation referred to: Constitution, Education Act 1983, Frauds and Limitations Act 1988 Marriage Act 1963, Medical Registration Act 1980 National Court Rules 1983 Organic Law on National and Local-Level Government Elections. Parliament Standing Orders Parliamentary Powers and Privileges Act (Ch 24) Partnership Act 1951, Professional Engineers (Registration) Act 1986, Public Health (Mental Disorders ) Regulation 1962 Public Health Act Chapter 226 Supreme Court Rules 1987 Trade Licensing Act 1969, Underlying Law Act 2000 PNG Books and Articles and Reports referred to: CPC Final Report 1974 Overseas Statutes & Subordinate legislation referred to: Constitution Act 1902 (Australia), European Communities Act 1972 (UK) Legislative Assembly Standing Order 29 of New South Wales, Australia, Merchant Shipping Act 1988 (UK) Papua New Guinea Act 1943 – 1973 (Australia) vi Papua New Guinea Independence Act 1975. Overseas Books and Articles and Reports referred to: Constitutional and Administrative Law, 5th Ed., O. Hood Philips Cross on Evidence , 7th Australian Ed ( 2004), Butterworths Expulsion of Members of NWS Parliament, Briefing Paper No. 17 /2003, Gareth Evans; NSW Parliamentary Library Research Service publications August 2003.
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