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Application by Hon Peter O'Neill MP [2023] PGSC 160; SC2506 (6 December 2023)

SC2506

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCCOS NO 9 OF 2022

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)

APPLICATION BY
THE HONOURABLE PETER O’NEILL MP

Waigani: Salika CJ, Kandakasi DCJ,
Mogish J, Cannings J, Kariko J

2023: 27^th September, 6^th December

SUPREME COURT – practice and procedure – applications under Constitution, s 18(1) – whether Court should hear and determine arguments on objections to competency after Court declares that the applicant has standing.

CONSTITUTIONAL LAW – whether notice of date of first meeting of the Parliament after general election was published in breach of Constitution, s 124(1) or Organic Law on the Calling of Meetings of the Parliament, s 1(1) – whether first meeting of Parliament at which Prime Minister was elected was unconstitutional.

CONSTITUTIONAL LAW – election of Prime Minister in accordance with procedure in Organic Law on the Integrity of Political Parties and Candidates, s 63 – whether s 63 unconstitutional due to restrictions on exercise of rights of members of the Parliament under Constitution, s 50(1) – whether election of Prime Minister unconstitutional.

REMEDIES – whether Court should declare that election of Prime Minister is null and void due to it taking place at an unconstitutional meeting of the Parliament or in accordance with an unconstitutional provision of an Organic Law and for the applicant not specifically pleading and seeking that relief.

The date originally fixed for the return of the writs for the 2022 general election was 29 July 2022. On that date, the date for the return of the writs was extended to 5 August 2022. On 1 August 2022 the Governor-General (on behalf of the Head of State) published a notice in the National Gazette under s 1(1) of the Organic Law on the Calling of Meetings of the Parliament fixing 9 August 2022 as the date on which the Parliament shall meet for the first time after the general election. The Parliament met on 9 August 2022 and after electing the Speaker, elected the Prime Minister in accordance with the procedure in s 63 of the Organic Law on the Integrity of Political Parties and Candidates. The applicant, a member of the Parliament opposed to the government, commenced proceedings under s 18(1) of the Constitution, seeking various declarations and orders including that the 9 August 2022 meeting of the Parliament was unconstitutional due to the notice calling for that meeting being published on a date (1 August 2022) before the date fixed for return of the writs (5 August 2022) contrary to s 1(1) of the Organic Law on the Calling of Meetings of the Parliament and that s 63 of the Organic Law on the Integrity of Political Parties and Candidates, which sets out the procedure for election of a Prime Minister, which was followed, is unconstitutional, and that therefore the election of the Prime Minister on 9 August 2022 was unconstitutional. He also sought a declaration that s 1(3) of the Organic Law on the Calling of Meetings of the Parliament was unconstitutional. Six interveners were granted leave to join the proceedings including the Attorney-General who argued that the application ought to be summarily dismissed on various grounds including that it failed to comply with the Supreme Court Rules, failed to plead appropriate relief, and was an abuse of process.

Held:

(1) Per Salika CJ, Mogish J, Cannings J & Kariko J; Kandakasi DCJ dissenting: The application did not depart from the Supreme Court Rules 2012 to the extent that it rendered the application incompetent or made hearing and determination of significant questions of constitutional interpretation and application futile or difficult. The application was not an abuse of process and was not raising questions that were trivial, vexatious or hypothetical or that had been authoritatively settled in previous cases. There was no good reason to summarily dismiss the application. It should be heard and determined on its merits.

(2) Per Kandakasi DCJ: The applicant was required to present his application in the prescribed form and plead a cause of action in accordance with the law and practice established by the Supreme Court Rules and many decisions of the Supreme Court, which the applicant failed to do, and in doing so also failed to plead in his application the basis on which this Court is asked to revisit its earlier decisions on point and depart from those earlier decisions. There was a complete absence of any such pleadings. The application was incompetent and not properly before this Court and ought to be dismissed for being incompetent, with costs against the applicant.

(3) Per Kariko J: As the Court earlier determined the question of competency of the application, it is a judgment the Court has no power to review or revisit.

(4) By the Court: Section 1(1) of the Organic Law on the Calling of Meetings of the Parliament requires that the notice in the National Gazette fixing the time and date of the first meeting of the Parliament after a general election be published after the date fixed for the return of the writs. Here the requirement was not complied with as the time and date of the first meeting of the Parliament was fixed and notice of it was published on 1 August 2022, which was before the date fixed for the return of the writs, 5 August 2022. Furthermore s 1(3) of the Organic Law on the Calling of Meetings of the Parliament is unnecessary and unworkable and is unconstitutional.

(5) By the Court: Adherence to the procedure in s 63 of the Organic Law on the Integrity of Political Parties and Candidates for electing a Prime Minister at the first meeting of the Parliament after a general election does not restrict or prohibit the rights of members of the Parliament under s 50 of the Constitution to take part in the conduct of public affairs through freely chosen representatives or to hold public office or to exercise public functions. No good reason was advanced for declaring s 63 unconstitutional.

(6) Per Salika CJ: Section 124 of the Constitution and s 1(1) of the Organic Law on the Calling of Meetings of the Parliament were breached. It follows that under s 11 of the Constitution all actions after the breach are invalid and ineffective. Accordingly, the meeting of the Parliament on 9 August 2022 was invalid and ineffective; the swearing in of members of Parliament by the Chief Justice was invalid and ineffective; the election of the Speaker was invalid and ineffective; the election of the Prime Minister was invalid and ineffective.

(7) Per Kandakasi DCJ, Mogish J, Cannings J & Kariko J; Salika CJ dissenting: Section 1 of the Organic Law on the Calling of Meetings of the Parliament does not indicate the consequences of failure to comply with the notice requirement of s 1(1). There was no breach of the overriding requirement of s 124(1) of the Constitution that the Parliament be called to meet not more than seven days after the day fixed for the return of the writs (as the Parliament met four days after the date fixed for the return of the writs). There was no evidence of any prejudice to any member of the Parliament including the applicant. In the circumstances, breach of the requirement of s 1(1) was inconsequential. A declaration that the meeting of the Parliament on 9 August 2022 was unconstitutional ought to not be granted.

(8) Per Kandakasi DCJ: The applicant did not properly plead the reliefs sought by reason of which the reliefs he was seeking outside what was pleaded cannot be granted.

(9) By the Court: A declaration should be made that s 1(3) of the Organic Law on the Calling of Meetings of the Parliament is unconstitutional.

(10) Per Kandakasi DCJ, Mogish J, Cannings J & Kariko J; Salika CJ dissenting: Other relief sought by the applicant ought to be refused. The parties should bear their own costs as the applicant had succeeded in obtaining a declaration that he had standing and the questions he raised were significant and he succeeded in proving that a breach of an Organic Law had occurred and that a provision of that Organic Law is unconstitutional.

(11) The order of the Court, by majority, was: (1) application to dismiss the application for being incompetent, refused; (2) declared that the requirement of s 1(1) of the Organic Law on the Calling of Meetings of the Parliament that the notice in the National Gazette fixing the time and date of the first meeting of the Parliament after the 2022 general election be published after the date fixed for the return of the writs was not complied with; (3) declared that noncompliance with s 1(1) of the Organic Law on the Calling of Meetings of the Parliament in respect of the 2022 general election was in the circumstances of this case inconsequential; (4) application for a declaration that the meeting of the Parliament on 9 August 2022 was unconstitutional, refused; (5) declared that s 1(3) of the Organic Law on the Calling of Meetings of the Parliament is unconstitutional; (6) application for declaration that s 63 of the Organic Law on the Integrity of Political Parties and Candidates is unconstitutional, refused; (7) application for a declaration that the election of the Prime Minister at the meeting of the Parliament on 9 August 2022 was unconstitutional, refused; (8) all other relief sought by the applicant refused; (9) subject to any specific costs orders made during the proceedings, the parties shall bear their own costs of the proceedings.

Cases Cited

The following cases are cited in the judgment:

Amet v Yama (2010) SC1064
Application by Anderson Agiru (2001) SC671
Application by Belden Norman Namah & Ila Geno v Hon Peter O’Neill & Ors (2015) SC1617
Application by Hon Belden Namah (2021) SC2082
Application by Hon Peter O’Neill MP, Findings of Fact by Justice David (2023) SC2481
Application by Namah (2020) SC1934
Application by Namah (2020) SC2040
Application by O’Neill (2020) SC2043
Application by O’Neill (2023) SC2400
Application of Jim Kas, Governor of Madang (2001) SC670
Bill Skate and Peter O'Neill v Jeffrey Nape, Speaker of Parliament (2004) SC754
Dekena v Kuman (2018) SC1715
Haiveta v Wingti [1993] PNGLR 197
Isidore Kaseng v Rabbie Namaliu [1995] PNGLR 481
Jacob Sanga Kumbu v Dr Nicholas Mann & Anor (2018) SC1710
Kuk v O’Neill (2014) SC1331
Lovika v Malpo (2019) SC1895
Michael Kuman v Digicel (PNG) Ltd (2017) SC1638
Mountain Catering Ltd v Frederick Punangi (2013) SC1225
PNG Bible Church Inc v Carol Mandi (2018) SC1724
Re Election of Governor-General (No 1) (2003) SC772
Re Reference by Ken Norae Mondiai (2010) SC1087
Reference by Ombudsman Commission [1994] PNGLR 341
SC Ref No 1 of 1992, Reference by Ombudsman Commission re Organic Law on National Elections (Amendment No 1 Law) 1991 [1992] PNGLR 73
SC Ref No 11 of 2008, Reference by Fly River Provincial Executive re Organic Law on the Integrity of Political Parties and Candidates [2010] 2 PNGLR 319
SC Ref No 2 of 1982, Reference by Ombudsman Commission re Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214
SC Ref No 2 of 2020, Reference by the Bougainville Executive re Sections 89(2) and 91(4)(f) of the Bougainville Constitution (2020) SC1952
SC Ref No 4 of 2017, Reference by the Ombudsman Commission re Return of the Writs for General Election (2019) SC1814
SC Ref No 6 of 2022, Reference by Attorney-General and Principal Legal Adviser re Disqualifications from Membership of the Parliament (2022) SC2244
Sir Mekere Morauta v Ano Pala & Ors (2016) SC1529
Sir Pato Kakaraya v The National Parliament (2004) SC756
Special Reference by the Ombudsman Commission Re Constitutional (Amendment) Law 2008 (2010) SC1027
Special Reference Pursuant to Constitution Section 19; Reference by Francis Damem, Attorney-General for the Independent State of Papua New Guinea (2002) SC689
The Independent State of Papua New Guinea v Uddin (2022) SC2312
The State & Sali v Sisia [1987] PNGLR 102
The State v NTN Pty Ltd & NBN Ltd [1992] PNGLR 1
William Hagahuno v Johnson Tuke (2020) SC2018

Counsel

R J Webb SC & G Kult, for the Applicant, Hon Peter O’Neill MP
L A Jurth, D Mel & R Kebaya, for the First Intervener, the Attorney-General, Hon Pila Niningi MP
D Steven, for the Second Intervener, People’s National Congress
M Nale, for the Third Intervener, Pangu Pati
S Ranewa, for the Fourth Intervener, the Speaker of the National Parliament, Hon Job Pomat MP
P Kuman, for the Fifth Intervener, the Electoral Commission
N Kopunye, for the Sixth Intervener, the Registrar of Political Parties

6^th December 2023

1. SALIKA CJ: Hon Peter O’Neill applies under s 18(1) of the Constitution requesting the Supreme Court to interpret s 1 of the Organic Law on the Calling of Meetings of the Parliament and its application to the calling of Parliament after a general election. That is the first request.
   
2. The second request is for the Court to consider and determine whether s 63 of the Organic Law on the Integrity of Political Parties and Candidates is unconstitutional.
   
3. For a proper and better understanding of the application, I reproduce the application in full:
   

To the Supreme Court:

APPLICATION TO INTERPRET SECTIONS 11, 18(1), 22, 37, 50, 124, 155(4), and Schedule 1.16 of the Constitution, ss 80(1) and (2), 97(2), 177 of the Organic Law on National and Local-Level Governments Elections (“the ONLLGE”), ss 1 and 2 of the Organic Law on the Calling of Meetings of the Parliament (“OLOCMOP”), and s 63 of the Organic Law on the Integrity of Political Parties and Candidates (“OLIPPAC”).

1. The Applicant requests the Court to declare that the Applicant has standing to make this application, and after that declaration, the findings sought in paragraph 3 below.
   
2. The basis on which the Applicant claims standing to make the application are:
   
   • (a) He is a citizen who has a genuine concern for the subject matter of the application;
     
   • (b) He was elected as the Member of Parliament for the Pangia-Ialibu Open Electorate in the 11^th National Parliament;
     
   • (c) He is the leader of the People’s National Congress, a registered political party under the OLIPPAC; and
     
   • (d) The matters the subject of this application raise important questions of national importance relating to the proper interpretation and application of the Constitution particularly relating to proper interpretation and application of the constitutional provisions providing for the election of appointment of a Prime Minister.
     
3. The Applicant requests the Court to declare that, the proper interpretation or application of the following provisions in the Constitution and specified Constitutional Laws, in the factual circumstances of the case, is as follows:
   

Organic Law on the Calling of Meetings of the Parliament:

(a) Under Schedule 1.2 of the Constitution, “the day fixed for the return of the writs for a general election” means:

• (a) In the case of a general election where there is no extension of the 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.
  

(b) In the 2022 NGE, there were a number of extensions of the time within which any writs can be returned, the most recent being made by the Electoral Commissioner by an instrument dated the 6^th August 2022. The time for the return of the specified writs (but not all writs) was extended by this instrument to the 12 August 2022. Therefore, definition in clause (b) of Schedule 1.2 of the Constitution applies in this case. The majority of writs were returned 5^th August 2022, and consequently, in the 22 NGE the day fixed for the return of the writs is the 5^th August 2022.

(c) Under s 1 the OLOCMOP, the Head of State is obliged in mandatory terms to:

(i) 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 on which the Parliament shall meet after the first time after a general election (see sub section (1) of the s 1 of the OLOCMOP), and

(ii) fix a date under subsection (1) which shall be not more than 7 days after the date fixed for the return of the writs for the general election. (see sub-section 2); and

(iii) as soon as practicable after fixing a time and date under sub section (1), give a notice to each member of the Parliament of not less 14 days specifying the time and date on which the Parliament shall meet for the first time after a general election, by telegram or pre-paid post (or howsoever otherwise).

(d) The term “the Parliament” as it is used in the Constitution is defined under the provisions of s 101 of the Constitution in these terms:

“Subject to this section, the Parliament is defined a single-chamber legislature consisting of:

(a) A number of members elected from single-member open electorates; and

(b) A number of members elected from single-member provincial electorates; and

(c) . .

(e) precise number of electorates referred to in section 101(1) of the Constitution is 118, as determined by reference to s 101(4) of the Constitution, and in accordance with s 125 of the Constitution.

(f) Consequently, it follows that on proper interpretation and application of these constitutional law provisions, Parliament cannot be called by the Head of State consistently with s. 1 of the OLOCMOP, unless and until there is a Parliament; that is until all of the members who can be returned as elected, have been returned as elected.

(g) On 1^st August 2022, the Head of State published a Notice in the National Gazette (G. 600) purporting to fix the time and date on which the Parliament shall meet for the first time after a general election at 10 am on the 9^th August 2022. This is not consistent with s 1 of the OLOCMOP for the following reasons:

• (i) The Notice published in the National Gazette was published before the date fixed for the return of the writs for the general election, and not after; and
  
• (ii) The Notice is directed to “the Parliament” which under s 101(1), is not yet formed; and
  
• (iii) The Notice was issued or given in circumstance which renders it impossible for the Head of State to comply with the minimum 14-day notice mandated in s 1(3) of the OLOCMOP.
  

(h) Consequently, the Notice of the 1^st August 2022 published in the National Gazette (G600) is inconsistent with the OLOCMOP and by operation of s 11 of the Constitution is unconstitutional and invalid; and

(i) Parliament has not been constitutionally called to sit on the 9^th August 2022.

The Organic Law on the Integrity of Political Parties and Candidates

(a) Section 63 of the OLIPPAC is not consistent with s 50 of the Constitution, for the following reasons:

1. It unreasonably prohibits the opportunity of otherwise eligible candidates from contesting in the election of the Prime Minister, contrary to s 50(1)(c), (d) and (e) of the Constitution; and
   
2. Is unintelligible in subsection (5), and (6), in that it refers to non-existent provisions relating to the manner of the election of the Prime Minister; and
   

100. It provides for a motion for nominations for the office of Prime Minister to be made by a political party, and not by a member of the Parliament;
     

and is consequently unconstitutional and invalid, under s 11 of the Constitution.

(b) Such other declarations or other orders as the Supreme Court sees fit.

4. The facts out of which the request rises are:
   
   • (a) The writs for the 2022 General Elections were issued by the Head of State under s 73 of the Organic Law, at 4 pm on the 12 May 2022.
     
   • (b) The day fixed for the return of the writs was the 29^th July 2022.
     
   • (c) On the 1^st August 2022, by a Notice in the Government Gazette (G600), the Head of State extended the date for the return of the writs to the 5^th August 2022, and at the same time purported to fix the date of the 9^th August 2022 as the date upon which the Parliament shall meet for the first time after the 22 NGE.
     
   • (d) On the 5^th August 2022, the majority of the writs in the 22 NGE were returned.
     
   • (e) By an instrument made by the Electoral Commissioner on Saturday the 6^th August 2022, the Electoral Commissioner extended the day fixed for the return of the writs in the 2022 election to the 12^th of August 2022.
     
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). No, a question of fact does not arise for determination by the Court on this Application.
   
6. The names of the persons or bodies whose interest may be directly affected by the interpretation sought by the person making the application are:
   
   1. The Attorney-General, the Hon. Pila Niningi LLB MP; and
      
   2. The Speaker of the National Parliament, the Hon. Job Pomat; and
      
   100. The Electoral Commissioner, Mr Simon Sinai.
        

Dated: 8^th August 2022

FACTS SETTLED BY JUSTICE DAVID

4. The following are facts settled by Justice David under Order 3 rule 3 of the Supreme Court Rules. He was commissioned by a three-member Supreme Court bench to settle the facts, and on 24 August 2023, he settled the facts which are not contested and are:
   

(a) The date for the return of the writs for the 2022 general election was set for 29 July 2022. This date was extended to 5 August 2022.

(b) The Governor-General published a notice in the National Gazette on 1 August 2022 under s 1(1) of the Organic Law on the Calling of Meetings of the Parliament and called that first meeting to be on 9 August 2022.

(c) The Parliament pursuant to that National Gazette notice met on 9 August 2022 and elected the Speaker of the Parliament and the Prime Minister.

Those were the facts and they are not in dispute.

PRINCIPLES OF INTERPRETATION

5. The principles of constitutional interpretation are well established and are deeply entrenched in Papua New Guinea judicial culture. I restated these principles in Application by O’Neill (2020) SC2043. I repeat them here:

The principles of constitutional interpretation in PNG are well established. The Supreme Court in SC Ref No 1 of 2008 Re 2006 Amendments to the Organic Law on Provincial Governments and Local-level Governments [2010] 1 PNGLR 233 restated those well-established principles. They are:

(i) In discharging its function of interpreting the laws, the Court must give paramount consideration to the dispensation of justice: Constitution s 158(2). The Constitution is a living document, dynamic in character and it speaks from time to time: Constitution, Sch 1.4. Each Constitutional Law is intended to be read as a whole: Constitution, Sch 1.5(1).

(ii) In cases where the word or expression used in the Constitution is clear and capable of being accorded its plain or ordinary meaning, then the Court should accord that meaning and apply it to the circumstances of the case before it.

(iii) But often the Court is asked to interpret a word or expression in the Constitution in which its meaning may be in doubt. The Court must engage in a construction exercise that will produce the correct meaning of that word or expression. The Court must give a fair and liberal meaning to the constitutional provision in question, to ensure that the legislature’s intention, spirit and purpose expressed in the provision is achieved: Constitution, Sch 1.5(2).

(iv) The Court must adopt an expansive and purposive approach rather than a narrow and restrictive approach: PLAR No 1 of 1980 [1980] PNGLR 326, SC Ref No 2 of 1992 Special Reference by the Public Prosecutor [1992] PNGLR 336, SC Ref No 3 of 1986 Reference by Simbu Provincial Executive [1987] PNGLR 151, Haiveta v Wingti (No 3) [1994] PNGLR 197. The Judges are urged to use “judicial ingenuity” in appropriate cases, to do justice: Kearny J in The State v The Independent Tribunal Established under s 27 of the Constitution: Ex Parte Moses Sasakila [1976] PNGLR 491. In a case where there are a number of possible interpretations open, the Court must avoid the interpretation which will or is likely to produce unjust and absurd situations or results. Where there is a gap in a Constitutional Law which would involve consideration of matters of public policy to fill, the Court must ordinarily defer to the legislature to fill the gap: SC Ref No 5 of 1980 Re Joseph Auna [1980] PNGLR 500.

(v) However, there are those cases in which the law is not so clear and the Court may be required to give an interpretation in order to resolve the matter before it. In such cases, if upon a fair and liberal construction of the constitutional provision, the intention of the Parliament can be given effect to, without usurping the Parliament’s legislative function, the Court must not shy away from that task because the Parliament can always by subsequent legislative act, correct it if the Parliament feels the Court has usurped its function.

(vi) In interpreting the Constitution, the Judges may use certain aids. These include the Reports of the Constitutional Planning Committee (Constitution, s 24) and the National Goals and Directive Principles (Constitution, s 25).

6. The above principles are by way of a constant reminder to the Courts dealing with issues of constitutional Interpretation under s 18(1) of the Constitution. Amet CJ in Haiveta v Wingti [1993] PNGLR 197 said:
   

CONSTITUTIONAL INTERPRETATION

So long as there is law, there must always be the need for interpretation. The task of interpretation is more acute in interpreting a written constitution such as ours. Judicial interpretation and pronouncement are as important as the decisions and policies of the executive and the legislature. When the judiciary makes a decision and pronounces it, it is laying down a standard for the community. The judiciary, therefore, cannot divorce itself from the consideration of public national interest.

One task of judicial interpretation is to uphold the cause of justice. What is the interpretation that will best achieve a sense of fairness and justice? The test or standard must be an objective one. It is not what I believe to be right. It is what I may reasonably believe that ordinary Papua New Guineans, of normal intellect, understanding, and conscience might reasonably look upon as right. It must be interpretation that gives cognisance to, and accords with, the ordinary person's objective perception of the public or national interest. The national and public interests are, in this context, synonymous.

Because constitutional interpretation is the sole preserve of the Supreme Court, the highest judicial authority in the nation, as delegated by the People to it through the Constitution, the Court has to be responsive to the constitutional values. The social philosophy of the Constitution must inspire the judicial decision-making process to adopt a broad goal-oriented and purposive approach directed towards advancing the constitutional objectives when interpreting the Constitution.

With respect, I adopt them as if I stated them.

COMPETENCY OF APPLICATION

7. The issue of competency of the application was raised by all the interveners except the second intervener. I will thus deliberate on this issue first. I start with the relevant provision of the Constitution namely s 18.
   
8. Section 18 of the Constitution says:

Subdivision C.—Constitutional Interpretation.

18. Original interpretative jurisdiction of the Supreme Court.

(1) 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.

(2) 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.

9. By contrast, s 19 says:
   

19. Special references to the Supreme Court.

(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.

10. Section 18(1) does not identify any particular person, body or authority to request the Court for an interpretation of a provision of a Constitutional Law. Moreover, it does not say how this jurisdiction is to be invoked and the circumstances it should be invoked. It left that to the Supreme Court Rules to cater for such applications, as to who and how to invoke the jurisdiction under s 18(1) of the Constitution.
    
11. Section 19 on the other hand provides a list of bodies and authorities which can request the Court to give an opinion on any question relating to interpretation of any provision of a Constitutional Law.
    
12. Hon Peter O’Neill, Member of Parliament for Ialibu-Pangia Open seat, is invoking the original interpretation jurisdiction of the Supreme Court under s 18(1) to interpret s 1 of the Organic Law on the Calling of Meetings of the Parliament and its application relating to the calling of the first meeting of the National Parliament after the 2022 general election and in relation to the mode of electing a Prime Minister after a general election under s 63 of the Organic Law on the Integrity of Political Parties and Candidates (OLIPPAC).
    
13. Section 18(1) of the Constitution allows for the Supreme Court to deal with any question relating to interpretation or application of any provision of a Constitutional Law.
    
14. Judges promulgated the Supreme Court Rules pursuant to s 184 of the Constitution, which reads:

(1) The Judges of the Supreme Court or of the National Court may make rules of court, not inconsistent with a Constitutional Law or an Act of the Parliament, with respect to the practice and procedure in and in relation to the Supreme Court or the National Court, as the case may be.

(2) Without limiting the generality of Subsection (1), the rules may make provision for and in respect of—

(a) the practice and procedures in the offices of the Supreme Court and the National Court; and

(b) the service and execution of process and judgements of the Supreme Court and the National Court; and

(c) the service and execution within the country of process and judgements of foreign courts; and

(d) the issue by the Supreme Court or the National Court of letters of request for the service in a foreign country of process of the Supreme Court or the National Court, as the case may be, or for the examination of witnesses in a foreign country; and

(e) the costs of and relating to proceedings in the Supreme Court or the National Court; and

(f) the methods of pleading; and

(g) the attendance of witnesses and the taking of evidence; and

(h) the means by which particular facts may be proved, and the manner in which evidence of particular facts may be given, in any proceedings or in any application in connexion with, or at any stage of, any proceedings.

(3) The rules of court may require or permit legal argument to be submitted in writing.

(4) If an Act of the Parliament comes into force that is inconsistent with a rule of court, the rule ceases to have effect to the extent of the inconsistency

(5) All rules of court shall be forwarded by the Chief Justice to the Speaker, for presentation to the Parliament, as soon as practicable after being made, and may be disallowed by the Parliament.

15. Section 184 of the Constitution is clear in its intent. It makes the point that Judges when promulgating the rules must firstly ensure the rules are not inconsistent with a Constitutional Law or an Act of Parliament, in respect to the practice and procedure relating to initiating an application under s 18(1) of the Constitution before the Supreme Court. With respect, this is what the Constitution intended in my respectful opinion as the Courts must give paramount consideration to dispensation of justice (see s 158(2) of the Constitution).
    
16. Are Order 4 rules 1 and 3 providing such a guide to those seeking to invoke the jurisdiction of the Court? Yes, they are, but in their practical application the Courts are very rigid and not flexible when applying the rules relating to applications to invoke the jurisdiction of the Court under s 18(1). This is what makes the rules counter-productive to the Constitution because the rules make it very difficult by imposing very strict mandatory conditions to comply with before an application under s 18(1) is even entertained or heard. Was this what was intended? No, with respect. The rules, in my respectful view, are restrictive and therefore conflict to that extent with the Constitution and fail to take into account and give effect to s 158(2) of the Constitution.
    

Subdivision B.—The Judicial Power.

158. Exercise of the judicial power.

(1) Subject to this Constitution, the judicial authority of the People is vested in the National Judicial System.

(2) In interpreting the law the courts shall give paramount consideration to the dispensation of justice.

17. With respect, it is my contention that the Rules of Court should not make the process and procedure for referring any question relating to interpretation or application of a Constitutional Law cumbersome, rigid and difficult. The Rules should, rather enable and make it easier for the Courts to give paramount consideration to the dispensation of justice as directed by s 158(2) of the Constitution.
    
18. A party which has named itself as the person making the application and has applied to be declared as having standing and has signed the application and the application is filed in the Supreme Court Registry, demonstrates compliance with Order 4 rule 1 of the Supreme Court Rules. In that regard, the applicant complied with rule 1 of Order 4 and he has also complied with rule 4. The body of the application is clearly understandable.
    
19. The application may not be strictly in the proper form as required under O 4 r 1 of the Supreme Court Rules. However, the Court should not be derailed off track to deal with the application just because the application is not strictly in the format under form 1 of the rules. I reproduced the applicant’s application in full and I note that the application is not compliant with the format. The body of the application is however fully compliant. The form the application is in, in my respectful opinion, is not and should not be fatal to the application. I am satisfied the pleadings are sufficient and adequate for this application to proceed to hearing. I refuse the application to dismiss the application on grounds of competency.
    

THE LAW

20. Judges are not in the business of law making. They interpret laws Parliament enacts including Constitutional Laws. That to me, with respect, is their first and foremost role. The Courts in PNG also have power to strike down a law including a Constitutional Law if it interprets that law to be inconsistent with a Constitutional Law.
    
21. Section 11(1) of the Constitution says:
    

11. Constitution, etc., as Supreme Law.

(1) This Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and, subject to Section 10 (construction of written laws) all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.

(2) The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit. (Underlining mine).

22. See also Reference by Ombudsman Commission [1994] PNGLR 341 and The State & Sali v Sisia [1987] PNGLR 102.
    
23. Section 11 of the Constitution is self-executing to the fullest extent. I cannot put it any clearer and higher than that. Where an act is inconsistent with a Constitutional Law, it is invalid and ineffective.
    
24. Earlier in this decision, I stated the relevant laws relating to principles of constitutional interpretation. I remind myself here again of my duty. Here I am asked to interpret the Constitutional Law. In doing that, I am reminded to be careful in interpreting the Constitution. I must be liberal and purpose driven in my approach to interpreting the Constitution. I am also urged to use “judicial ingenuity” in appropriate cases to do justice. Ultimately, I must not lose sight of s 158(2) of the Constitution.
    

THE ISSUES

25. The issues that arise from the application are:
    

(a) Whether the gazettal notice published and issued for the calling of the first meeting of Parliament after a general election on 9 August 2022, was contrary to s 1(1) of the Organic Law on the Calling of Meetings of the Parliament.

(b) Whether s 63 of the Organic Law on the Integrity of Political Parties and Candidates is contrary to s 50 of the Constitution.

DEALING WITH THE ISSUES

ISSUE (A): WHETHER THE GAZETTAL NOTICE PUBLISHED AND ISSUED FOR THE CALLING OF THE FIRST MEETING OF PARLIAMENT AFTER A GENERAL ELECTION ON 9 AUGUST 2022, WAS CONTRARY TO SECTION 1(1) OF THE ORGANIC LAW ON THE CALLING OF MEETINGS OF THE PARLIAMENT

26. Before embarking on this issue, I set out the provisions of the Organic Law in full:
    

Organic Law on the calling of Meetings of the Parliament,

Being an Organic Law to implement Section 124 (calling, etc) of the Constitution.

1. CALLING OF FIRST MEETING AFTER A GENERAL ELECTION.

(1) The 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 on which the Parliament shall meet for the first time after a general election.

(2) The 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.

(3) The Head of State shall–

(a) as soon as practicable after fixing a time and date under Subsection (1); and

(b) not less than 14 days before that date; and

(c) where a state of emergency has been declared, not less than seven days before that date,

cause a notice specifying that time and date to be forwarded by telegram or pre-paid post to each member of the Parliament.

2. CALLING OF OTHER MEETINGS.

(1) In relation to any meeting of the Parliament, other than the first meeting after a general election, the time and date for the meeting–

(a) shall–

(i) be fixed by the Parliament on motion without notice by a Minister; or

(ii) where the Parliament has failed to fix a time and date, be fixed by the Head of State, acting with and in accordance with, the advice of the National Executive Council; and

(iii) where a state of emergency has been declared or the Head of State, acting with, and in accordance with, the advice of the National Executive Council, is of the opinion that exceptional circumstances justify the urgent calling of a meeting of the Parliament, be fixed by the Head of State, acting with and in accordance with the advice of the National Executive Council; or

(iv) where the Speaker has received a request from the Emergency Committee under Section 242(3) (functions, etc., of Emergency Committees) of the Constitution, be fixed by the Speaker after consultation with the Emergency Committee; and

(b) shall be notified in the National Gazette.

(2) The Speaker shall, not less than 14 days before the date fixed under Subsection (1)(a)(i) or (ii) or not less than seven days before the date fixed under Subsection (1)(a)(iii) or (iv) for a meeting of the Parliament, cause a notice to be forwarded by telegram and pre-paid post to each member of the Parliament.

3. CALLING MEETINGS EARLIER.

(1) Notwithstanding that the time and date of a meeting of the Parliament have been previously fixed, the time and date for an earlier meeting may be fixed in the circumstances in which not less than seven days notice of the meeting is required under Sections 1 and 2.

(2) Action may not be taken under Subsection (1) less than 14 days before the date already fixed for the meeting.

(3) The meeting of the Parliament, the time and date of which are fixed under Subsection (1), shall be in substitution for the meeting, the time and date of which had been previously fixed.

27. The first substantive contention by the applicant is that the act of having the gazettal notice published and issued on 1 August 2022 for the calling of the first meeting of Parliament on 9 August 2022 was contrary to s 1(1) of the Organic Law. He contends that the date fixed for the return of the writs was 5 August 2022, and as such the notice to call Parliament to meet should have been published and issued after 5 August 2022. He contends that the publication of the notice of the calling of Parliament on 1 August was in breach of s 1(1) of the Organic Law. The flow-on effect from the notice for the calling of that meeting was election of the Speaker and the Prime Minister. That notice calling for the first meeting of Parliament after the general election was issued by the correct authority, the Head of State, on his behalf by the Governor-General.
    
28. There is no dispute that the notice calling for the meeting of the Parliament, gazetted on 1 August 2022 was published and issued on 1 August 2022. There is no dispute 5 August 2022, was the date fixed for the return of the writs. The earliest the said gazettal notice could be issued and published to comply with s 1(1) of the Organic Law was 6 August 2022. That is the clear language and meaning of the words of s 1(1) of the Organic Law. At the core, the applicant argues the legitimacy of the events which unfolded in Parliament on 9 August 2022, on the basis of an invalid and an ineffective notice calling on it to meet on 9 August 2022. He contends that the first meeting of Parliament on 9 August 2022 was unconstitutional in that the date for the calling of that meeting on 1 August, 2022, was contrary to s 1(1) of the Organic Law on the Calling of Meetings of the Parliament. He claims that to be consistent with the Organic Law, the meeting ought to have been called after 5 August 2022.
    
29. It is clear that s 1(1) of the Organic Law on the Calling of Meetings of the Parliament was breached. The effect of the invalid and ineffective notice published gazettal notice issued on 1 August 2022, before the date fixed for the return of the writs brought all MPs whose election writs had been returned to attend the first meeting of Parliament on 9 August. That was to be for the purpose of making their declaration of office and the declaration of loyalty before the Chief Justice. Following which the Speaker and the Prime Minister were to be elected. As it turned out, the Chief Justice at that meeting had the MPs take their oath of allegiance, oath of office and the declaration of loyalty before him. Thereafter, the Speaker and the Prime Minister were elected to office on the floor of Parliament pursuant to s 114 of the Constitution and s 63 of the Organic Law on the Integrity of Political Parties and Candidates.
    
30. The calling of the first meeting of Parliament after a general election is a very important one and must be done in full compliance with s 124 of the Constitution and s 1(1) of the Organic Law. The notice issued and published in the National Gazette on 1 August 2022 to call Parliament to meet on the 9 August 2022, was invalid and ineffective, because the notice was published and issued before 5 August 2022, the date fixed for the return of the writs. Section 124 of the Constitution requires Parliament to be called for its first meeting after a general election within seven days after the date fixed for the return of the writs. The date set for the meeting was within the seven days after the date fixed for the return of the writs and was compliant with s 124 and s 1(2) of the Organic Law. Section 1(1) of the Organic Law, in plain language, sets out the due process to follow when calling for the first meeting of Parliament after a general election. Parliament met on the beckoning of an invalid notice dated 1 August 2022, calling on it to meet. The resultant events thereafter pursuant to s 11(1) of the Constitution including my own participation on the floor of Parliament on 9 August 2022 were invalid. The flow-on effect of this invalid calling of Parliament to meet is far-reaching and is not a simple matter, as it were, in my respectful opinion.
    
31. The calling of the meeting of the Parliament on 9 August 2022 was for the purpose of performing three distinct functions:
    

1. for MPs who had been elected to make their way to Parliament for them to declare their oath of allegiance, oath of office and oath of loyalty;
   
   2. to elect the Speaker; and
      
   3. to elect the Prime Minister.
      

32. Those matters are very important matters for the Parliament to deal with. The seriousness of this invalid notice calling the Parliament to meet is not and should not be simply brushed aside and shoved under the carpet so to speak. The due process provided for by the Constitution and the Organic Law was not adhered to. To suggest that no one was prejudiced and this was not a major error, and that there was substantial compliance, in my view, are with respect, weak excuses. There is either compliance or noncompliance. No middle ground. In my respectful opinion, it is dangerous and is eroding the hierarchy, integrity, authority and power of the Constitution. If this Court is to validate and legitimize an otherwise invalid and ineffective notice issued and published on 1 August 2022, in my respectful opinion, it is counter-productive to the principle of the rule of law and is the beginning of lawlessness and a departure from the rule of law and democracy. What happened here is a reckless disregard for due process and is a grievous assault on the Constitutional Law. The Constitution has spoken through s 11. The notice calling for Parliament to meet is invalid and ineffective. The meeting of Parliament could not proceed on that defective notice.
    
33. The noncompliance of the Constitution and the Organic Law on the Calling of Meetings of the Parliament must not be treated as a minor breach. Noncompliance is a breach and renders everything invalid and ineffective and the follow-on effect of the noncompliance is, with respect, not minor. I find that the first meeting of the Parliament after the general election on 9 August 2022 was invalid and that the subsequent events that followed after were invalid and ineffective. With respect, this is the clear meaning of the language and effect of s 11(1) of the Constitution. The Courts in the dispensation of justice are very rigid and strict to the letter of the law when dealing with election petitions under s 208 of the Organic Law on National and Local-level Government Elections. The same standard must be applied to another Organic Law in its interpretation.
    
34. The calling of all meetings of Parliament is regulated by the Constitution and the Organic Law. That to me, with respect, is the demonstration of the importance placed on calling of meetings of Parliament in a lawful way, befitting meetings where the People’s power of lawmaking is exercised.
    

Subdivision F.—Calling, etc., of the Parliament.

124. Calling, etc.

(1) The 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, and shall meet not less frequently than three times in each period of 12 months, and, in principle, for not less than nine weeks in each such period.

(2) An Organic Law shall make provision for the calling of meetings of the Parliament.

(3) Subject to Subsections (1) and (2), an Act of the Parliament or the Standing Orders of the Parliament may make provision in respect of the sittings of the Parliament. (Underlining mine.)

35. The noncompliance as clear as can be, is not only against the Organic Law but is a breach of s 124 of the Constitution. The language of s 124(1) of the Constitution is clear. “Parliament shall be called to meet not more than seven days after the date fixed for the return of the writs for a general election”. Parliament shall be called within seven days from 5 August 2022, in this instance. This means Parliament could be called to meet from the 6^th to the 12^th of August 2022, but not after the 12^th. Similarly, s 1(1) of the Organic Law is to be construed in the same manner. The due process expounded in clear plain prints of s 124(1) of the Constitution and s 1(1) of the Organic Law ought to have been complied with. Those provisions of the law are there for good reason one of which is that before calling of the first meeting of Parliament after a general election, there must be certainty that a majority of the writs had been returned. It is agreed that the majority of the writs were returned on 5 August 2022, and not 1 August 2022. Therefore Parliament must be called to meet after 5 August 2022 after majority of the election writs had been returned and secured.
    
36. Calling of first meeting of Parliament after a general election is not a simple casual meeting. Parliament is the Legislature, it is the First Arm of Government under our system of government and importantly, it is where PNG’s laws are made that are binding on everyone after being passed and certified. Calling of the first meeting of Parliament after a general election must be done according to law and in this instance, according to s 1(1) of the relevant Organic Law. If it missed the mark, it would be invalid and ineffective pursuant to s 11 of the Constitution.
    
37. The scenario is this: Constitutional Laws were breached and everything said and done after the breach is invalid and ineffective. Section 124(2) says an Organic Law shall make provision for calling of meetings of Parliament. This very Organic Law put into effect s 124(2) of the Constitution.
    

QUESTIONS RAISED

38. The issues raised by the applicant relating to s 1(1) of the Organic Law are:
    

1. Whether the gazettal notice for the calling of the first meeting of Parliament to be held on 9 August 2022 was published and issued on 1 August 2022 - answer is Yes.
   
2. Whether majority of the writs had been returned on or by 1 August 2022 - answer is No.
   

100. Whether 5 August was the date fixed for the return of the writs - answer is Yes.
     

4. Whether the gazettal notice referred to in a) above was published and issued after 5 August 2022, the date fixed for the return of the Writs - answer is No.
   
5. Whether that notice offended s 124 of the Constitution and s 1(1) of the Organic Law - answer is Yes.
   
6. Whether Parliament as a result of the publication of the gazettal notice calling for the first meeting of Parliament after a general election met on 9 August 2022 – answer is Yes.
   
7. Whether events in Parliament on 9 August 2022 were invalid and ineffective – answer is Yes.
   
8. Whether the gazettal notice for the calling of the first meeting of Parliament after the 2022 general election was in breach of s 1(1) of the Organic Law on the Calling of Meetings of the Parliament - answer is Yes.
   
9. Whether the gazettal notice for the calling of the first meeting of Parliament after the 2022 general election was in breach of s 124 of the Constitution - answer is Yes.
   
10. If the answers to issue (g) and (h) are “yes”, what are the consequences of such breaches? Answer – The net effect and consequence is that all actions thereafter on 9 August 2022, are invalid and ineffective. That is the plain and clear unambiguous language of s 11 of the Constitution.
    

GUARDIAN OF THE CONSTITUTION

39. That said, I remind myself that this Court is the guardian of the Constitution and the laws of this country. They must be protected at all costs from any attempts to erode them and treat them with contempt. In that regard, the Supreme Court has even held in numerous cases that the Court can enter the arena of politics where constitutional issues relate to the political considerations and that this must be done within the confines of the Constitution and the principle of separation of powers (see s 99 of the Constitution.)
    
40. This was considered in Haiveta v Wingti [1994] PNGLR 197 where Amet CJ (as he then was) at page 206 vividly explained the judiciary’s role in the following manner:

In some constitutions, it is left to the legislature to interpret the meaning of these principles, but in other types of constitutions, of which ours is one, the judiciary is clothed with the power and charged with the duty of ensuring, upon the application of aggrieved parties, that the legislature and the executive, and, indeed, the judiciary as well, do not transgress the limits set upon their powers.

In Papua New Guinea it has come to be accepted that the judiciary is the guardian of the Constitution. This is amply and expressly provided for in the Constitution. Sections 18 and 19 provide for the original interpretative jurisdiction of the Supreme Court. Sections 22 and 23 provide for the enforcement of constitutional rights and sanctions, respectively, and ss 57 and 58 then complete these powers by providing for enforcement of guaranteed rights and freedoms and compensation, respectively. Section 11 declares that the Constitution is the Supreme Law of Papua New Guinea, and subject to s 10 (construction of written laws), all acts, whether legislative, executive, or judicial, that are inconsistent with it are, to the extent of the inconsistency, invalid and ineffective.

I remind myself of the nature of the question with which this Court is asked to deal with. As I said so in earlier reference, the decision as to the number of days the Parliament sits is by nature a question of politics. That is to say, it is determined by voting in the Parliament. It is no secret that this type of decision is taken on political grounds. That is no reason for this Court to turn a blind eye and come to the view that it should not enter the arena of politics. This is a proper caution that this Court must bear in mind when faced with the issues involving political considerations. I gave this caution in Kapal v The State [1987] PNGLR 417 at 429-426. The Constitution has made this clear in adopting the doctrine of separation of powers under s 99 of the Constitution. The independence of each of the three arms of government is fundamental. This Court must observe and uphold this principle.

However, the Constitution of Papua New Guinea is unique in many respects. It has subjected many political or policy issues to the scrutiny of the Courts. It is the duty of this Court to take up these issues without fear and favour within the strict confines of the powers given by the Constitution. This Court has had a proud tradition of addressing such issues: becoming involved in the policy decisions on television broadcasting (see The State v NTN Pty Ltd [1992] PNGLR 1); resignation and appointment of the Prime Minister (see Haiveta v Wingti (No 3) [1994] PNGLR 197) to mention only but a few.

41. Los J in the same case expounded on this:
    

We who constitute the Judiciary hold no sword or purse but it is comforting to know that like the National Executive Council and the Parliament we are mere agents of the people. We as agents have no greater power and the authority than the people. The Judiciary should not therefore shrink from declaring breaches of the constitutional duties by the Parliament irrespective of its enforceability.

42. In Public Services Commission v The Independent State of Papua New Guinea [1994] PNGLR 63 I described the Court’s power to control Executive acts in the following manner:
    

It is not the courts’ function to interfere with the functions of the National Executive Council to carry out its duties. However, the courts, as guardians of the law, are duly bound to ensure that the letter of the law is adhered to.

SPIRIT OF THE CONSTITUTION

43. In relation to the spirit of the Constitution, the Supreme Court in Haiveta v Wingti [1994] PNGLR 197 held as per the headnotes:
    

Per Kapi DCJ (Los and Jalina JJ concurring), because of the concession made at trial by the appellant, namely that "if the occasion for the appointment of Prime Minister arose when the Governor-General received the Prime Minister's resignation ... the appointment of the new Prime Minister on 24 September was valid", the trial Judge did not get the benefit of full argument on the issue of the meaning of the words "next sitting day". The trial Judge erred in law in accepting the plaintiff's concession. The respondent's interpretation of "next sitting day" could be abused by an incumbent Prime Minister to deny the Opposition a meaningful opportunity to contest the appointment of a new Prime Minister and was contrary to the spirit of the Constitution. The spirit of the Constitution involves such things as the right and a reasonable opportunity to elect and be elected to public office (s 50), the dispensation of justice (s 158(2)), equality of opportunity and participation (second National Goal and Directive Principle), and the obligation to act in the spirit of the Constitution (Basic Social Obligation (a)), a constitution which promotes the ideals of a free, fair, and democratic system of government. (Underlining mine.)

Per Salika J, the respondents' interpretation of the phrase "next sitting day", as used in s 142(3) of the Constitution, permits the government and the Prime Minister of the day to use s 142(3) to avoid facing a vote of no confidence. It was, accordingly, contrary to the spirit of the Constitution. As the body that appoints the Prime Minister, the Parliament must be the body where the question of resignation and appointment is raised in order to determine when the "next sitting day" occurs for the purposes of s 142(3).

44. In interpreting the Constitution, the Court must not promote opportunities for conspiracy, unfairness and manipulation of the Constitutional Laws but must uphold the spirit of the Constitution and dispense justice according to law.
    
45. In summary the act of issuing and the publication of the gazettal notice calling for the meeting of Parliament after a general election on 1 August 2022, was in breach of s 1(1) of the Organic Law. I declare that notice to be invalid as being unconstitutional and ineffective pursuant to s 11 of the Constitution. The net effect of that breach is that all events that took place on 9 August 2022 are invalid and ineffective.
    
46. The Organic Law and the Constitution for that matter do not provide a remedy for noncompliance except under s 23 of the Constitution which jurisdiction can only be exercised by the National Court. The fact remains, there were breaches of s 124(1) of the Constitution and s 1(1) of the Organic Law on the Calling of Meetings of the Parliament.
    

WAY FORWARD

47. In my respectful view, one option is to repeat the process, according to law and the other is to take it to Parliament to resolve it taking into account the majority opinion.
    
48. The reason I say to take the matter to Parliament is so that Parliament can debate the issues of the breach and decide them in accordance with s 114 of the Constitution, which states:

114. Voting in the Parliament.

(1) Subject to Subsection (5) and except as otherwise provided by a Constitutional Law or the Standing Orders of the Parliament, all questions before a meeting of the Parliament shall be decided in accordance with the majority of votes of the members present and voting.

(2) Subject to Subsection (5), the member presiding does not have a deliberative vote except—

(a) on a motion of no confidence in the Prime Minister, the Ministry or a Minister, in accordance with an Organic Law referred to in Section 145 (motions of no confidence); or

(b) on any question which requires an affirmative vote greater than a simple majority.

(3) Subject to Subsection (5), except in a case where he has voted under Subsection (2), in the event of an equality of votes on a question, the member presiding has a casting vote, but if he fails to use it the motion shall be deemed to be withdrawn.

(4) The Standing Orders of the Parliament shall make provision for the manner in which a vote is to be taken and recorded.

(5) An Organic Law made for the purposes of Subdivision VI.2.H (protection of elections from outside or hidden influence and strengthening of political parties) may restrict the voting rights of a member of the Parliament in certain circumstances. (Underlining mine.)

49. It is not the role of the Court to ponder over this question. With respect, this situation can be cured by Parliament itself under s 114 of the Constitution if the majority view carries.
    
50. In relation to the first option, the gazettal notice, the sitting of Parliament, the swearing in of Members of Parliament, the elections of the Speaker and the Prime Minister are invalid and ineffective, therefore must go back for compliance with s 1(1) of the Organic Law.
    
51. The question of the constitutionality of the gazettal notice and the subsequent meeting of the Parliament has now been determined by the Court as being unconstitutional, invalid and ineffective. The entire bench is agreed on that one and only critical point. The Court has performed its role to interpret the Constitution. Parliament is the body to make appropriate decisions to restore the status quo and that is to dissolve itself and repeat the process constitutionally this time.
    

ISSUE (B): WHETHER SECTION 63 OF THE ORGANIC LAW ON THE INTEGRITY OF POLITICAL PARTIES AND CANDIDATES IS UNCONSTITUTIONAL

52. In relation to the second issue of whether s 63 of the Organic Law on the Integrity of Political Parties and Candidates is inconsistent with s 50 of the Constitution, it is my respectful opinion that s 63 of the Organic Law was not a provision that was specifically referred for interpretation in the OLIPPAC case, SC Ref No 11 of 2008, Reference by Fly River Provincial Executive re Organic Law on the Integrity of Political Parties and Candidates [2010] 2 PNGLR 319. This issue is now raised and argued. Counsel for the applicant failed to persuade me that s 63 of the relevant Organic Law is unconstitutional. In PNG no one party has come back from an election with the required majority to form a government on its own. There is a lot of room for all parties to be involved in the formation of a government. At that point the balance of power is not with the party which returned most members, it is with the smaller parties. Before Parliament first sits there is ample opportunity for the smaller parties to turn the table on the party that returns the most number of members. In that context s 63 of the Organic Law is not unconstitutional.
    
53. The orders I propose are:
    

1. I dismiss the competency application;
   
2. I find that s 124 of the Constitution and s 1(1) of the Organic Law on the Calling of Meetings of the Parliament were breached and as such declare under s 11 of the Constitution, that all actions after the breach are invalid and ineffective;
   
3. The gazettal notice calling for the meeting of Parliament issued and published on 1 August 2022 is declared invalid and ineffective;
   
4. The meeting of Parliament on 9 August 2022 is declared invalid and ineffective;
   
5. The swearing in of Members of Parliament by the Chief Justice on 9 August 2022 are invalid and ineffective;
   
6. The election of the Speaker of Parliament on 9 August 2022 is invalid and ineffective;
   
7. The election of the Prime Minister on 9 August 2022 is invalid and ineffective;
   
8. Parliament must dissolve itself to repeat the process properly under s 124 of the Constitution and s 1(1) of the Organic Law;
   
9. Section 63 of the Organic Law on the Integrity of Political Parties and Candidates is not unconstitutional;
   
10. Costs of the application are awarded to the applicant.
    

54. KANDAKASI DCJ: This is an application by Honourable Peter O’Neil, member for Ialibu-Pangia Open Electorate as a private citizen (the applicant) under s 18(1) of the Constitution. Instead of promptly proceeding to a hearing on what is otherwise a straightforward matter after the Court declared the applicant has the necessary standing, his lawyers did not get his pleadings in order and press for a prompt hearing and disposal of the matter. There were instead repeated applications for amendments to the application and several avoidable interlocutory applications. That contributed to the application being heard on 27 September 2023, which was more than a year after its original filing on 4 August 2022.
    

SUMMARY OF ARGUMENTS OF THE PARTIES

55. Despite advancing several grounds in his further, further amended application (the application), at the hearing, the applicant restricted himself to only two grounds. These grounds respectively claim s 1(3) of the Organic Law on the Calling of Meetings of the Parliament (OLOCOMP), and s 63 of the Organic Law on the Integrity of Political Parties and Candidates (OLIPPAC) are unconstitutional and must therefore be struck down. Depending on achieving those outcomes, the applicant is seeking without any foundation in the pleadings several reliefs, including a declaration that the election of Hon James Marape as Prime Minister on 9 August 2022, was unconstitutional. The second intervener, the Peoples National Congress Party (PNC) supports the application.
    
56. The rest of the interveners oppose the application on two foundations. Firstly, they submit the application fails to properly plead a cause of action for the purpose of s 18(1) as required by Order 4 rr 1 and 3 and Form 1 of the Supreme Court Rules 2012 (SCRs) and is therefore incompetent. Secondly, they submit ss 1(3) of the Organic Law on the Calling of Meetings of the Parliament and s 63 of the OLIPPAC are constitutional. Additionally, they submit the constitutionality of s 63 of the OLIPPAC and the other provisions of the Constitution referred to in the application and submissions have already been decided in SC Ref No 11 of 2008, Reference by Fly River Provincial Executive re Organic Law on the Integrity of Political Parties and Candidates [2010] 2 PNGLR 319 (the Fly River Decision), per Injia CJ, Salika DCJ, Sakora J, Kirriwom J (as they then were) and Gavara-Nanu J and SC Ref No 4 of 2017, Reference by the Ombudsman Commission re Return of the Writs for General Election (2019) SC1814, per Salika CJ, Kandakasi DCJ, Mogish, and Manuhu JJ (the Ombudsman Reference 2019) and is therefore are non-issues. Ultimately, based on these arguments, they submit the Court must refuse to answer the questions and dismiss the proceedings with costs against the applicant.
    
57. The applicant initially took issue with the Interveners raising the issue of competence of the application but on being referred to the decision of this Court in this proceeding now published as Application by the Honourable Peter O’Neill MP (2023) SC2400, per Kandakasi DCJ, Batari, Mogish, Hartshorn and Makail JJ, for example at paragraph 20 of my judgment with the agreement of Batari and Mogish JJ, that:
    

... the interveners would still have the opportunity to raise at the hearing of the substantive application whatever issues they might have as against the application for the Court’s consideration and decision as part of a hearing and determination of the substantive matter,

the applicant abandoned his objections to the interveners raising the issues on competence. His counsel then addressed the points raised in the objection.

ISSUES FOR DETERMINATION

58. The issues for this Court to determine in my view are as follows:
    

(1) Is the application before us incompetent and must therefore be dismissed?

(2) Are the provisions of s 1(3) of the OLOCOMP and s 63 of the OLIPPAC unconstitutional?

59. Of the two issues, the issue of competence is a determinative one. If the application is found to be incompetent, that will ultimately determine the proceeding. If, however, the Court finds the application is competent, it will be necessary to consider and determine the second issue. I wish to thus, deal with the question of competency first.
    
60. I have had the benefit of reading the draft decisions of the learned Chief Justice and that of my brother, Cannings J. For reasons I will give shortly, I do not with the greatest of respect, agree with their Honours’ respective views on the first issue of competency.
    

FACTUAL BACKGROUND AND CONTEXT

61. Before delving into the issues for determination, it is necessary to set out and appreciate the relevant factual background and context from which the issues and arguments are before this Court.
    
62. On 13 July 2023, the full Court appointed his Honour David J, to settle the facts following the parties’ lack of agreement on some of the relevant facts. The facts as found by David J establish that the applicant first entered Parliament in August 2002 as the member for Ialibu-Pangia. He has since retained his seat in the subsequent general elections to date.
    
63. In 2002, Parliament passed the OLIPPAC 2000, which came into effect on 23 February 2002. In 2003, OLIPPAC 2003 repealed and replaced the OLIPPAC 2000. By National Gazette No G142 of 2003 published on 30 October 2003 following certification by the Speaker of Parliament on 15 October 2003, OLIPPAC 2003 came into effect. Section 63 of OLIPPAC 2003 is adapted from s 76 of the OLIPPAC 2000. In OLIPPAC 2003, there is no provision s 63(4)(a) and s 63(4)(b). Hence, s 63(5) & 63(6) of OLIPPAC 2003 are drafting errors when s 63 was adapted from s 76 of the OLIPPAC 2000.
    
64. In 2010, the Fly River Provincial Executive filed a Special Constitutional Reference SC Ref No 11 of 2008. On 7 July 2010 the Supreme Court delivered its decision which has become known as the Fly River Decision. In summary form the headnotes, the Court’s findings of fact and decision 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 OLIPPAC.

Held:

1. General questions – Question 6 & 17:
   
   • (1) Except to the extent that s 50(1) (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.
     
   • (2) 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.
     

(3) Except to the extent that OLIPPAC provisions, the subject of this reference restricts the exercise of s 50 right, OLIPPAC complies with the formal requirements of s 12, s 127 and s 130A of the Constitution.

2. 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.

3. 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, ss 12(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).

2012 National General Elections

65. In 2012, the country went into National General Elections. The date set for a return of the writs was 27 July 2012. By Gazette G272 published on 27 July 2012, the Head of State extended the time for the return of writs from 27 July 2012 to 1 August 2012. The reason to extend was because some electorates had not completed counting. By Gazette G275 published also on the same day, 27 July 2012, the Head of State fixed 3 August 2012 for the first sitting of Parliament after the 2012 National General Elections. By Gazette G277 published on 31 July 2012, the Head of State further extended the time for the return of Writs from 1 August 2012 to 8 August 2012. The reason to extend was due to late commencement of counting and interruptions and stoppages to the process of counting in the following Provinces:
    

(1) Chimbu,
(2) Eastern Highlands,
(3) Enga,
(4) Jiwaka,
(5) National Capital District, and
(6) Western Highlands.

66. By Gazette G281 published on 1 August 2012, the Head of State invited People’s National Congress to form Government as the party which has endorsed the greatest number of candidates declared elected in the 2012 National General Elections pursuant to s 63 of the OLIPPAC. Notwithstanding the extension, the Governor-General after consultation with the outgoing Prime Minister (Hon Peter O’Neill) fixed 3 August 2012 as the date for the first sitting of Parliament after 2012 General Elections. Hon Powes Parkop and Hon Tom Olga and Hon Sam Basil commenced court proceedings against Hon Peter O’Neill and others, over the appointment of the first sitting of Parliament and applied for interim orders to restraint Parliament from sitting. On 3 August 2012, the application for interim injunctive relief was refused by the National Court. On the same day, Parliament proceeded to sit, and Hon Peter O’Neill was elected Prime Minister. That was despite not all seats in Parliament being declared. Also, by Gazette G287 published on 3 August 2012, the Head of State confirmed the appointment by Parliament of Hon Peter O’Neill as Prime Minister on 3 August 2012. Subsequently, the date for the return of writs was extended to 08 August from 1 August 2012, for the then remaining writs.
    

2017 National General Elections

67. The country next went into the polls in 2017. The issue of writs, opening of nominations, and start of campaign period for the 2017 National General Election was on 20 April 2017. Nominations closed on 27 April 2017. Polling commenced on 24 June 2017. On 8 July 2017, campaign and polling period ended and counting of ballot papers began and completed on or before 24 July 2017. The date for return of writs for that election was fixed as 24 July 2017. By Gazette G538 published on 21 July 2017, the Head of State fixed 31 July 2017 for the first meeting of Parliament after the Elections. However, by Gazette G539 published on 21 July 2017, the Head of State extended the date for return of writs from 24 July 2017 to 28 July 2017 in accordance with the advice of the Electoral Commission.
    
68. On 28 July 2017, the Ombudsman Commission filed proceedings SC Ref No 4 of 2017. The Supreme Court extended the date for return of writs to remain as 31 July 2017. Honourable Peter O’Neill as the Prime Minister was the 2nd Intervener in SC Ref No 4 of 2017.
    
69. By Gazette G560 published on 28 July 2017, the Head of State extended time and date for the first meeting of Parliament to 10 am, 2 August 2017. By Gazette G561 published 28 July 2017, the Head of State invited PNC as the party with the greatest number of candidates declared in the 2017 National General Elections to form Government pursuant to s 63 of the OLIPPAC. By 29 July 2017, most of the Writs were returned. At the first meeting of Parliament on 2 August 2017, it elected Hon Peter O’Neill as Prime Minister. On 27 February 2019, the Supreme Court delivered its decision in SC Ref No 4 of 2017 published as the Ombudsman Reference 2019 on the questions raised. The Court held in general as follows:
    

(1) The Electoral Commission has a wide and unfettered discretion by virtue of Schedule 1.2(1) of the Constitution to extent 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. In so doing the Court effectively overruled in part the decision in SCR 4 of 2012; Special Reference Pursuant to Constitution Section 19; Reference by Francis Damem, Attorney-General for the Independent State of Papua New Guinea (2002) SC689.

(2) 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 then current Parliament with 111 total Members of Parliament meant 56 Members of Parliament.

2022. National General Elections
      
70. On 12 May 2022, 118 writs for the 2022 National General Election were issued by the Head of State upon advice from the Electoral Commission. May 13 2022, was fixed for nomination of candidates. That date was deferred to 23 May 2022, on account of the death of the then Deputy Prime Minister Hon Sam Basil. The adjusted nominations and campaign period was from 23 May to 9 July 2022. From 23-29 July 2022, counting, scrutiny, and the declaration of results in the 2022 National General election took place. The declaration of results in all electorates was not completed by 29 July 2022, for a range of reasons which varied from electorate to electorate. The reasons included violence, protest by candidates’ scrutineers and suspension of counting, and disruption of counting by disgruntled persons, slow counting of ballot papers, protest by counting officials, interference in the counting process by candidates, security personnel, and scrutineers. The Electoral Commissioner advised the Head of State to extend the date fixed for the return of writs from 29 July to 12 August 2022. On 28 July 2022, the Electoral Commissioner advised the Head of State that, upon reflection, the date fixed for the return of writs should be extended only to 5 August 2022. That went beyond the original date fixed for the return of the writs (calculated by reference to the date of majority return of writs in the 2017 National General Elections) of 29 July 2022.
    
71. By Gazette G597 published on 29 July 2022, the Head of State extended the date for the return of the writs from 29 July to 5 August 2022, “based on special circumstances to enable the majority of the writs to be returned”. By Gazette G600 published on 1 August 2022, the Head of State fixed 9 August 2022, for Parliament to meet for the first time after the 2022 National General Election. By 5 Aug 2022, 83 out of the 118 writs issued were returned with 35 Writs not returned and the Electoral Commission attended on the Head of State on that day with the 83 Writs. On the same day, the Electoral Commissioner extended the date fixed for the return of the remaining Writs to 12 August 2022.
    
72. Thereafter the Head of State, by Gazette G628 published on 9 August 2022, invited PANGU Pati as the party with the greatest number of candidates declared elected to form Government. By 9 am on 9 August 2022, a further 24 Writs had been returned to the Electoral Commissioner, who took them to the Head of State. That left 11 writs yet to be returned.
    
73. In accordance with Gazette No 600 the first session of Parliament commenced at 1:30 pm on 9 August 2022, and it elected a Speaker, and adjourned. The second session of Parliament commenced at 4:15 pm on 9 August 2022, for the election of Prime Minister. In that session, the Speaker called on PANGU Pati as the party with the most seats to nominate its candidate for the election of Prime Minister. At that point, Hon Peter O’Neill got up from his seat and exited the chamber and did not return or further participate in the second session. Honourable James Marape was elected Prime Minister in the second session. He was elected by all 97 members of Parliament who attended that session of Parliament and participated in the election.
    
74. On 12 August 2022, the Electoral Commissioner further extended the time for the remaining (7) writs to be returned to 19 August 2022. By 5 September 2022, all writs, except for two open seats, had been returned to the Head of State.
    

FIRST ISSUE – IS THE APPLICATION COMPETENT?

75. Turning to the issues for determination next, I turn to the issue of competency first. Questions of competency of any proceeding continue to be a live issue until final judgment, because that question goes into the jurisdiction of the Court. See: Amet v Yama (2010) SC1064, Mountain Catering Ltd v Frederick Punangi (2013) SC1225, Kuk v O’Neill (2014) SC1331 and Application by O’Neill SC2400 (supra).
    
76. In this case as I noted at [20] in my decision in Application by O’Neill SC2400 (supra), the court was of the view that the issue of competency would be considered during and as part of the hearing of the substantive matter. Following that, the issue was fully argued before this Court. Consequently, all parties made detailed submissions on the issue. It is, therefore, an issue before this Court which the Court must determine.
    
77. Competency in the context of applications under s 18(1) of the Constitution and any other proceeding before the Supreme Court falls under three main categories. These are the need for an applicant to:
    

(1) use the prescribed forms,

(2) employ the prescribed wording in the relevant forms,

(3) correctly, succinctly, and sufficiently plead with clarity the applicant’s cause of action by pleading the facts giving rise to the application, the Constitutional Law interpretation or application required with the other main and consequential reliefs sought with the grounds.

Form and wordings – first two categories

78. The relevant provisions for consideration are s 18(1) of the Constitution and O 4, rr 1 and 3 and Form 1 of the SCRs. These provisions read:
    

Constitution

18. Original interpretative jurisdiction of the Supreme Court.

(1) 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.”

...

Order 4 and Form 1 SCRs

ORDER 4—REFERENCES UNDER THE CONSTITUTION

Division 1. —Form of reference

1. A reference under Constitution Section 18 or a special reference under Constitution Section 19 shall be instituted by a reference and shall—

(a) be entitled under the Section of the Constitution by which it is made together with the year and number of the reference;

(b) and with—

(i) the name of the person, or authority making the reference under Section 18(1) or special reference under Section 19; or

(ii) with the title or proceedings if the reference is under Section 18(2).

(c) state the name of the person, court, tribunal or authority making the reference;

(d) be in accordance with forms 1, 2, or 3 whichever is applicable;

(e) be signed by the person, court, tribunal, authority or proper officer on behalf of the authority as required by law, making the reference; and

(f) be filed in the registry.

....

3. An application under Constitution, s 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.”

...

Form 1

O. 4 Rule 1

GENERAL FORM OF APPLICATION (CONSTITUTION S 18(1))

IN THE SUPREME COURT S.C.R. No. of 20....

OF JUSTICE (Insert number and year)

Application Pursuant 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 (inset Constitution or 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 request the Court to declare that the proper construction 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, with a 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.”

(All underlining mine).

79. I underlined the relevant parts of the Rules and Form 1 that are in issue in this proceeding. The discussion that follows and the decision based on the discussions will be in respect of the underlined provisions.
    
80. The law in respect of the first two categories listed above are well settled. The latest decisions on point are the decisions of the Supreme Court in the Application by Belden Norman Namah (2020) SC1934, per Kandakasi DCJ, Cannings and Shepherd JJ, and the Application by Hon Belden Namah (2021) SC2082, per Cannings, David, Kariko, Anis, and Miviri JJ.
    
81. In the first case, the applicant had his application headed as “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 ...” This gave the impression that Mr Namah was making a Constitutional 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. The first intervener in that case, argued this rendered the application incompetent and it must be dismissed. In response, the applicant argued, he had substantially complied with the requirements of the rules and the relevant provisions of the Constitution, and as such his application should not be dismissed. The Court upheld the objection and dismissed the application. At [41] the Court reasoned:
    

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. (Underling mine)

82. In arriving at that view, the Court noted at [42] – [44]:
    

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.

83. At [45] the Court considered the departure from the prescription in the SCRs was serious. It reasoned:
    

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.

84. In arriving at that decision, the Court relied on the Supreme Court’s earlier decision in Re Reference by Ken Norae Mondiai & Ors (2010) SC1087, per Injia CJ, Salika DCJ, Sevua J, Kirriwom J (as they then were) and Davani J (as she then was), dissenting. In so doing the Court noted at [46]:
    

It was clarified in Re Reference by Ken Norae Mondiai ... 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. (Underlining mine)

85. In Application by Hon Belden Namah (2021) SC2082, the competency of the application was challenged based on the relevant facts not being pleaded with sufficient clarity and particulars. The Court noted, O 4, r 3(d) and paragraph 4 of Form 1 requires:
    

An application under Constitution Section 18(1) shall state ... the facts out of which the request arises.” and goes on to state:

...

The facts out of which the request arises are:

86. The Court then noted the problem with the application before it was that the facts were not stated or pleaded. Instead, as the Court noted, the relevant facts were stated in an affidavit of the applicant. In respect of that, the Court held:
    

We uphold the submission of the interveners that the application is non-compliant with the requirement that the facts out of which the request for interpretation of Constitutional Law provisions arose, be stated in the application. Clearly the purpose of this requirement is to put the onus on the applicant to state his case at the outset: to plead the facts which he claims give rise to a cause of action in constitutional law.

Stating, in the application, that the facts are set out in an affidavit, which happened to be filed on the same day as the application was filed, does not meet the requirement that the applicant state his case in the application. This amounts to a significant defect in the originating process. (Underlining mine)

87. The Court accepted the fact that it was applying a rather strict standard of compliance and went on to justify that by saying it was “being mindful of the fact that the application before the Court is an attempt to invoke the jurisdiction of the Court directly under the Constitution”. That meant that an applicant needs to strictly comply with the requirements of the SCRs as such proceedings are no ordinary proceedings.
    
88. The other basis for the first intervener taking issue with the competency of the application in that case was a claim that requirements of O 4, r 3(e), and Form 1 were not met. That provision states:
    

An application under Constitution Section 18(1) shall state ... whether a question of fact arises for determination by the Court on the application.

89. The Court found and held:
    

It is notable that there has been complete non-compliance with this requirement. Nothing is stated at all as to whether any questions of fact arises for determination by the Court. This is a significant requirement of the Rules, as it is the means by which the Court is alerted to the need to determine how facts will be determined prior to the hearing of the application.

We stated above that strict compliance with the Rules is necessary in the case of a person who seeks to invoke the original jurisdiction of the Supreme Court in constitutional matters. However, if we were, as contended for by Mr Sheppard, to relax the standard of compliance and say that substantial compliance is sufficient, we would conclude that the form used in this case is not substantially compliant with the Rules. It is materially defective in the two respects underlying the grounds of objection. (Underlining mine)

90. The Court then went on to distinguish in its decision two earlier applications by the same applicant Hon Belden Namah (through the same law firm as is the case here) from the one it was dealing with in the following terms:
    

We appreciate that the facts of the present case can to some extent be distinguished from two other cases (both coincidentally involving the same applicant) that were dismissed upon the upholding of objections to competency.

In Namah v Pato [2013] 1 PNGLR 205, a s 18(1) Constitution application was dismissed as incompetent due to it being framed as an originating summons, discordantly with Form 1 of the Rules (and it was also signed by the applicant’s lawyer, rather than by the applicant, as required by the Rules).

In Reference by Hon Belden Norman Namah MP (2020) SC1934, a purported s 18(1) Constitution 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, as pointed out in the leading case, Re Reference by Ken Norae Mondiai (2010) SC1087, to entertain references under s 18(1) of the Constitution, so the proceedings were fundamentally misconceived and dismissed as incompetent. (Underlining mine)

91. Then for the case before it, the Court held:
    

We acknowledge that the application in the present case appears to be in a proper form. It comes closer to being a valid invocation of the Court’s jurisdiction than the applications in the other Namah cases referred to. But not close enough.

The two defects in the application exposed by our upholding both grounds of objection prevent this Court finding that the application is substantially compliant with the Rules. (Underlining mine)

92. Ultimately the Court concluded:
    

The application is non-compliant with the Rules in the two respects underlying the grounds of objection. Both grounds exposed significant defects in the originating process. Strict compliance with the Rules is necessary in view of the special and significant nature of the application, it being an attempt to apply directly to the Supreme Court for relief against alleged breaches of the Constitutional Laws.

The application does not meet the standard of strict compliance required, and further, does not, even if the standard of substantial compliance were applied, meet that lesser standard.

The application is materially non-compliant with the Rules. The jurisdiction of the Court has not been properly invoked. The objection to competency is upheld. The proceedings must be entirely dismissed. Costs will follow the event. (Underlining mine)

Pleading the cause of action – third category of competence.

93. Turning then to the third category of competence, I note, it is now well established in our jurisdiction that s 18(1) of the Constitution grants a private citizen a right to commence proceedings in the Supreme Court in its original jurisdiction. That is possible only if a question of interpretation and or application of a constitutional provision arises. A quick review of the relevant decisions on point show that, there are two types of matters that may be brought under s 18(1). First, s 18 (1) gives the Court jurisdiction to deal with a cause of action brought by a private citizen who has the necessary standing to bring an action seeking declaratory or injunctive relief in a matter which involves determination of constitutional questions. For cases on point see: Bill Skate and Peter O' Neill v Jeffrey Nape, Speaker of Parliament (2004) SC754; Re Election of Governor-General (No 1) (2003) SC772; Sir Pato Kakaraya v The National Parliament (2004) SC756; Isidore Kaseng v Rabbie Namaliu [1995] PNGLR 481, Application by Anderson Agiru (2001) SC671; Application of Jim Kas, Governor of Madang (2001) SC670; Special Reference by the Ombudsman Commission Re Constitutional (Amendment) Law 2008 (2010) SC1027.
    
94. The second kind of cases that could be brought under s 18 (1), are Constitutional References brought by a private citizen. Past judicial opinion was divided on this kind of cases. That started with the decision in the Somare Case. The Supreme Court by majority, granted Mr Somare standing and proceeded to determine the petition. Unfortunately, the majority did not elaborate on the nature of a case that could be brought under s 18 (1). But that decision however, provided the test to be adopted and applied when considering whether an applicant has standing for an application under s 18 (1) of the Constitution.
    
95. The issue arose again in Re Application by Anderson Agiru (supra). In that case Mr Agiru brought a Reference under s 18(1) challenging the constitutionality of Part III Division 8 of the Organic Law on Provincial Governments and Local-Level Governments. The Court was also divided on the issue. Amet CJ with whom Los J agreed, held that s 18(1) granted jurisdiction to a private person to bring a reference. They adopted and applied the decision of the majority in the Somare Case without addressing the ambiguity in relation to the nature of the proceeding under s 18(1). Sir Mari Kapi DCJ with whom Salika J (as they then were) who agreed, regarded the reference by Mr Agiru as a cause of action or “an application for declaratory orders” which come within the original jurisdiction of the Court and dealt with it as such.
    
96. A few months later, the issue arose again in the Kas Case. The Court unanimously adopted the statement of Kapi DCJ and Salika J in the Agiru Case. In 2008, the issue arose again in, In the Reference by Ken Norae Mondiai and Ors (supra). The leading judgment there was, by the then Chief Justice, Sir Salamo Injia with whom their Honours, Salika DCJ., and Kirriwom J., (as they then were) agreed. The other members of the Court, her Honour Davani J dissented while Sevua J did not give any opinion. Injia CJ, reviewed the earlier decisions I referred to above and correctly noted that, those decisions did not consider the provisions of O 4, r 1(1) and (3) and Form 1 of the SCRs.
    
97. His Honour then went into the task of interpreting the provisions of s 18(1) of the Constitution by adopting and applying the principles of Constitutional Law interpretation, and held at [32]:
    

Section 18 (1) clearly does not authorize a Constitutional Reference to be brought by a person whose authority to bring the Reference is expressly provided for in s 18 (2) and in s 19 (3). (Underlining mine)

98. The learned Chief Justice then distinguished in the same paragraph, the decision in the Somare Case from the decision in the Kas Case in the following terms:
    

The Somare Case was a s 18(2) Reference in which the issue of standing to bring a petition before the National Court was referred to the Supreme Court. For the purpose of determining the Reference and to expedite determination of the substantive matter, having found that Mr Somare had standing to bring the petition, the Court called up the petition and determined it under the broad power given under s 18 (2) in conjunction with s 18(1) to the extent that it allowed the Supreme Court to deal with a cause of action in the form of a Petition, brought by a private citizen who had the necessary standing to bring the action. The remarks by the majority in the Somare Case, especially those of Chief Justice Kidu fall short of a clear statement that a Constitutional Reference can be brought by a private person under s 18(1). Those statements instead are consonant with a cause of action being brought under s 18(1) by a person who has the necessary standing. For that reason and for the reasons given by the Court in the Kas Case, the Somare Case can be distinguished on this point. (Underlining mine)

99. The learned Chief Justice accepted the views of the Court in the Kas Case at [33] and outlined at [34] – [35] the procedure to adopt in these terms:
    

33. I am in complete agreement with the Court's view in the Kas Case that a Constitutional Reference cannot be brought under s 18 (1), however, the original jurisdiction of the Supreme Court under s 18(1) can be invoked directly by appropriate cause of action in law, by a private citizen who has the necessary standing. That decision also effectively overruled the views expressed by Amet CJ and Los J in the Agiru Case.

34. In a case where a private citizen or a legal entity intends to bring a matter before the Supreme Court which involves Constitutional issues, the appropriate procedure is by a cause of action brought under s 18 (1). Such is the practice that has developed in this Court ... The procedure to follow is by Originating Summons seeking declaratory, injunctive or other relief. SCR do not make adequate provision governing proceedings commenced by Originating Summons. Until those procedures are developed by the Judges, the Court can address and deal with those types of proceedings through ad hoc directions in individual cases: see SCR, O 3.

35. In an action under s 18 (1), the action would be normally pleaded and tried. The plaintiff's standing should be pleaded and determined as a threshold issue. In the trial, where facts are necessary to be determined, the procedure is set out in SCR O 3 r 2. Although the action is tried by the full Court, the Court may direct findings of fact to be made by a single Judge of the Supreme Court who is not a member of the bench that is seized of the matter: see Application by Francis Gem under s 57 of the Constitution (2010) SC1065. (Underlining mine)

100. Having arrived at that view, the learned Chief Justice held the provisions of O 4, r 1 and form 1 were inconsistent with s 18(1) of the Constitution, to the extent that they allow for Constitutional References. His Honour reasoned:
     

36. The Court in the Kas Case did not consider SCR, O 4 r 1 and Form 1. I have considered this rule and find that there is an inconsistency between that rule and the opinions expressed in the Kas Case and my own opinion with respect to s 18 (1). The inconsistency can be easily resolved by this Court invoking its power under s 11 and s 184 (1) of the Constitution. To the extent that provisions of a subordinate legislation is inconsistent with a provision of the Constitution, the former is invalid.

37. I am of the view that to the extent that O 4 r 1 and Form 1 of the Supreme Court Rules 1984 allow a Constitutional Reference to be filed by a private citizen, they are inconsistent with s 18(1) of the Constitution and are invalid. (Underlining mine)

101. The decision of the Supreme Court in the Mondiai Case has been accepted and applied in subsequent decisions of the Supreme Court. This includes the decision in Belden Norman Namah v Rimbink Pato & Ors (supra). Repeating what I had already quoted, the Court said:
     

It was clarified in the leading case Re Reference by Ken Norae Mondiai (2010) SC1087 ... that Section 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 only hypothetical questions of constitutional law. (Underlining mine)

102. Later in the Application by Belden Norman Namah & Ila Geno v Hon Peter O’Neill & Ors (2015) SC1617, the then Chief Justice, Sir Salamo Injia with whom the other members of the Court, Salika DCJ, Sakora J and Davani J (as they then were) agreeing with the reasons and conclusions and Kirriwom J (as he then was) agreeing with the conclusion noted at [3]:
     

These claims, which I refer to as ‘Constitution claims’, are amongst the first of its kind brought under s 18(1) of the Constitution and the new rules of Court found in Order 4 of the Supreme Court Rules 2012, and the first such claim that has been fully tried on its merits. The new rules of court were introduced following this Court's decision in Re Reference by Ken Norae Mondiai (2010) SC1087. The rules give private citizens who have sufficient interest in the subject matter of the proceedings but who otherwise lack standing to bring a Constitutional Reference under s 19 of the Constitution, to bring a Constitutional Claim challenging the Constitutional validity of a statutory enactment. (Underlining mine)

103. Most importantly, that decision spoke on the need to properly plead a cause of action under s 18(1) of the Constitution, per Injia CJ in these terms:
     

12. In an ordinary civil claim, it is the pleadings that define the foundation of the claim (or defence to the claim) and it is the pleadings that drive the evidence and the outcome of the case. Findings of fact and reasonable inferences drawn from primary facts are made from the evidence and the law applied to reach a conclusion that determines claim and the relief to be granted. It is possible though for a case that raises purely legal issues on the pleadings based on uncontested facts to be determined without recourse to any evidence. The plaintiff bears the onus of proving the claim on the ordinary civil standard of proof- on the balance of probabilities. These principles equally apply to the proof of a Constitutional claim brought under s 18(1) of the Constitution.

13. A Constitutional claim brought under s 18(1) of the Constitution insofar as it involves challenge to the validity of legislation is a public lawsuit that is often permeated by socio-political surroundings. There is that danger inherent in such claims that parties, in particular applicants, tend to overload the pleadings with irrelevant matters and exaggerate pleadings and material in support that prove to be burdensome for the Courts of law. It is necessary for the Court dealing with a claim under s 18(1) of the Constitution that is permeated by political surroundings to adopt a strict approach by insisting on parties to plead matters that are the proper subject for judicial resolution and confine their case to the pleadings. (Underlining mine)

104. In Sir Mekere Morauta v Ano Pala & Ors (2016) SC1529, per Kandakasi J (as he then was) Yagi J and Sawong J (as he then was), considered the question of proper pleading of a cause of action in an application under s 18 (1) of the Constitution that meets the requirements of O 4, r 1 and 3 and Form 1 of the SCRs. In response to an argument that the application was presenting a public interest case, the Court compared and distinguished the case before it with the decision in the Namah and Geno Case and held that the two cases were miles apart. It then reasoned at [28]:
     

Firstly, the nature of the case and questions presented in the Re Application by Ila Geno, was a public interest case which clearly presented a number of very significant Constitutional questions, which were clearly spelt out in the application. Here, going by the kinds of relief sought, they are clearly for the private commercial interest of SDP. If, however, there is a public interest question, the duty was on the applicant to bring out the question clearly in accordance with Form 1 item 3 as was done by the applicant in Re Application by Ila Geno. (Underlining mine)

105. The Court then considered the phrase, “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” in Form 1 and stated at [29]:
     

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. In this case, the application in relevant parts reads:

‘The Applicant requests the Court to declare that on proper interpretation, construction or application of the provisions of Sections 32, 33, 34, 38, 39, 41 and 53 of the Constitution, the TSA Act is unconstitutional, invalid, and no force or effect.’ (Underlining mine)

106. Having stated the principle, the Court went on to observe at [3]:
     

Paragraph 3.1 of the Application sets out the reliefs the applicant is seeking. Other than that, there is nothing more. Nowhere is there in any of these paragraphs or elsewhere in the application, a clear statement of the kind of proper interpretation and or application of any of the Constitutional provisions that may be required is specifically mentioned or set out. This is very critical from three perspectives. Firstly, clarity in a statement of the issues presented will help enable the Court and the parties to know if the matter before the Supreme Court is a matter in which the Supreme Court has the necessary jurisdiction to consider and deal with. Without any such clear statement, the Court cannot be expected to assume any jurisdiction and deal with the matter. Secondly, such a clear statement will help enable the Court and all parties to know what Constitutional law provision is required to be interpreted and or applied and in what particular way. This will enable the opposing party to know the case they may have to meet and enable them to properly prepare and present their arguments. Finally, such a clear statement would enable the Court and the parties to ascertain if the issue has been raised before or the issue is one only of application of a Constitutional provision without the need for any interpretation. For if the provisions have been already considered in earlier proceedings or they are very clear, there would be no reason to re-agitate the same issues again or ask for any interpretation. (Underlining mine)

107. Turning then to second distinguishing feature between the two cases, the Court went on to say at [31]:
     

Secondly, flowing on from the first major point of difference between this case and the Re Application by Ila Geno, it is clear that a well-known Papua New Guinean is being used or is coming to this Court in this case for the benefit of a foreign registered company, namely the SDP.... as opposed to the whole of Papua New Guinea being affected by the serious questions that were raised in Re Application by Ila Geno case, where the whole of the parliamentary system of government and hence the people stood to be affected. Sir Mekere may be affected in his personal capacity in terms of his personal interest and position in SDP. But none of that is clear and before the Court and in any case, how that could give him standing to bring this application is not clear.(Underlining mine)

The law in summary

108. The foregoing discussions especially of the case authorities on point represent the law and practice as it now stands. They make it very clear that applications under s 18(1) of the Constitution are not Constitutional References but applications by private citizens who have the necessary standing. They are no ordinary proceeding but special. They are special because, they seek to invoke the original jurisdiction of the Supreme Court for the purposes only of interpreting and or application of a constitutional law provision that has not yet received any interpretation and or application by the Supreme Court.
     
109. Given the special nature of such proceedings, an applicant under s 18(1) of the Constitution has a duty and an obligation to use the correct form, Form 1 in the SCRs and plead his cause of action in the way a plaintiff would plead in any civil proceeding but restricted to the case raising a question of interpretation and or an application of a constitutional law provision. That entails the applicant pleading his basis for seeking and securing a declaration that he has standing in terms of meeting the requirements on standing as a preliminary point. This is dependent on a valid cause of action being pleaded in terms of presenting a clear question of an interpretation or an application of a particular constitutional law provision. As of necessity the applicant must also plead succinctly, clearly, and sufficiently the relevant facts giving rise to the application. Included in that, should be pleadings disclosing how the applicant has been personally affected and how he or she was precluded from doing something about it or take steps to prevent the events complaint of from occurring and or has not contributed to the subject matter of complaint. If a public interest is also involved or alleged, the pleadings must sufficiently plead the nature of the public interest or right that is affected. Such pleadings must include the main reliefs as to how the relevant constitutional provision must be interpreted or applied to remedy the harm or damage complained of together with the form of declarations and interpretations the Court is being asked to give in the circumstances of the case as well as any consequential reliefs that are sought.
     

Present case

110. So, what is the position in the present case? Except for the second intervener, all Interveners submit that the Applicant has not pleaded his case strictly in accordance with the requirements of O 4 rr 1 and 3 and Form 1 of the SCRs and the relevant case law on point as discussed above. Without expressly conceding, learned counsel for the applicant, Mr R Webb, submits all the parties can identify and know the issues in his client’s application. Hence, the purpose and or object of pleadings has been met and the application is competently before the Court, which this Court must hear and determine on its merits.
     
111. The relevant application in the present case is the further, further amended application. Relevantly, paragraphs 3 – 5 read as follows:
     
     3. The Applicant requests the Court to declare that, the proper interpretation or application of the following provisions in the Constitution and specific Constitutional Laws, in the factual circumstances of the case, is as follows:-
        

Organic Law on the Calling of meetings of the Parliament

(a) Under Schedule 1.2 of the Constitution, “the day fixed for the return of the writs for a general election” means-

• (a) in the 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.
  

(b) In the 2022 NGE, there were a number (sic) an extensions of the time within which any writs can be returned, the most recent being made by the Electoral Commissioner by an instrument dated 6^th August 2022. The time for the return of the specified writs (but not all writs) was extended by this instrument to 12 August 2022. Therefore, definition in clause (b) of Schedule 1.2 of the Constitution applies in this case. The majority of writs were returned 5^th August 2022, and consequently, in the 22 NGE the day fixed for the return of the writs is the 5^th August 2022.

(c) Under s 1 the OLCMOP, the Head of State is obliged in mandatory terms to: -

(i) 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 on which the Parliament shall meet for the first time after a general election (see sub section (1) of the s 1 of the OLCMOP), and

(ii) fix a date under subsection (1) which shall be not more than 7 days after the date fixed for the return of the writs for the general elections, (see sub section 2), and

(iii) as soon as practicable after fixing a time and date under sub section (1), give a notice to each member of the Parliament of not less 14 days specifying the time and date on which the Parliament shall meet for the first time after a general election, by telegram or pre-paid post (or howsoever otherwise).

(e) [wrongly lettered] The term “the Parliament” as it is used in the Constitution is defined under the provisions of s. 101 of the Constitution in these terms:-

“Subject to this section, the Parliament is a single-chamber legislature, consisting of:

(a) A number of members from single-member open electorates;

and

(b) A number of members elected from single-member provincial electorates; and
(c) ...:

(f) The precise number of electorates referred to in section 101(1) of the Constitution is 118, as determined by reference to s 101(4) of the Constitution, and in accordance with s 125 of the Constitution.

(g) Consequently, if follows that on proper interpretation and application of these constitutional law provisions, Parliament cannot be called by the Head of State consistently with s 1 of the OLCMOP, unless and until there is a Parliament; that is until all of the members who can be returned as elected, have been return as elected.

(h) On 1^st August 2022, the Head of State published a Notice in the National Gazette (G/600) purporting to fix the time and date on which the Parliament shall meet for the first time after a general election as 10 am on the 9^th August 2022. This is not consistent with s 1 of the OLCMOP for the following reasons: -

(i) The Notice published in the National Gazette was published before the date fixed for the return of the writs for the general election, and not after, and
(ii) The Notice is directed to “the Parliament” which under s 101(1) is not yet formed, and
(iii) The Notice was issued or given in circumstance which renders it impossible for the head of State to comply with the minimum 14 days’ notice mandated in s 1 (3) of the OLCMOP.

(i) Consequently, the Notice of 1 August 2022 published in the National Gazette (G600) is inconsistent with the OLCMOP and by operation of s 11 of the Constitution is unconstitutional and invalid, and

(j) Parliament has not been constitutionally called to sit on the 9^th August 2022.

The Organic Law on the Integrity of Political Parties and Candidates

(i ) Section 63 of the OLIPPAC is not consistent with s 50 of the Constitution, for the following reasons:-

• (a) It unreasonably prohibits the opportunity of otherwise eligible candidates from contesting in the election of the Prime Minister, contrary to s 50(1) (c), (d) and (e) of the Constitution, and
• (b) Is unintelligible in subsections (5) and (6), in that it refers to non-existent provisions relating to the manner of the election of the Prime Minister, and
• (c) It provides for a motion for nominations for the office of Prime Minister to be made by a political party, and not by a member of the Parliament, and is consequently unconstitutional and invalid, under s 11 of the Constitution.
  

(j) Such other declarations or other orders as the Supreme Court sees fit.

4. The facts out of which the request arises are:
   
   • (a) the writs for the 2022 General Election were issued by the Head of State under s 73 of the Organic law, at 4 pm on the 12 May 2022.
   • (b) The day fixed for the return of the writs was the 29^th July 2022.
   • (c) On the 1^st August 2022, by a Notice in the Government Gazette (G600) the Head of State extended the date for the return of the writs to the 5^th August 2022, and at the same time purported to fix the date of the 9^th August 2022 as the date upon which the Parliament shall meet for the first time after the 22 NGE.
   • (d) On the 5^th August 2022, the majority of the writs in the 22 NGE were returned.
   • (e) By an instrument made by the Electoral Commissioner on Saturday the 6^th August 2022, the Electoral Commission extended the day fixed for the return of the writs in the 2022 elections to the 12^th of August 2022.
     
5. Whether a question of fact arises for determination by the Court on the application. (if questions of facts 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). No, a question of fact dose not arise for determination by the Court on this Application.
   
112. A close examination of the application reveals its drafts man or woman has not paid close attention, caution, and care to ensure that the document was properly done up with opening and closing quotations in the correct places, correct numbering of each of the paragraphs in a proper sequential manner and so on. In the substantive part of the application, the following is revealed:
     
     • (1) Paragraph 3 (a) states the provisions of sch 1.2 of the Constitution as to the definition of the phrase “the day fixed for the return of the writ for a general election”.
     • (2) Paragraph 3 (b) comprises of a statement of fact and submission.
     • (3) Paragraph 3 (c) is a submission on the provisions of s 1 of the OLOCOP.
     • (4) Paragraph 3 (e) [wrongly numbered] is a statement of s 101 of the Constitution as to the definition of Parliament.
     • (5) Paragraph 3 (f) is a statement of fact.
     • (6) Paragraph 3 (g) is a submission.
     • (7) Paragraph 3 (h) is a statement of facts and submissions.
     • (8) Paragraph 3 (i) and (j) are submissions.
     • (9) Paragraph 3 (j) contains submissions.
     • (10) The pleadings under the heading “The Organic Law on the Integrity of Political Parties and Candidates” constitutes submissions on s. 63 of the OLIPPAC and s. 50 of the Constitution.
     • (11) Paragraph 4 pleads a brief set of facts. This pleading is far short and deficient when compared to the facts eventually found by David J, as I noted at [8] to [21] above.
     • (12) Paragraph 5 does not plead any fact which requires the Court’s determination. Hence, this paragraph does not lay any foundation for the relevant facts that became contested and required a hearing and determination by David J.
       
113. Order 4, r. 3 (b) and Form 1 paragraph 3 of the SCRs require an applicant to state or plead only the “name of a constitutional law and Section”. That is not done here. Consequently, the applicant has failed to state the “name of [the] ... constitutional law and Section” separately. Paragraph 4 of the form requires a statement of the relevant facts. The provisions of O 4, r 3(c) of the SCRs next requires an applicant to plead “the answer or interpretation and relief for which the applicant contends” separately. This is not done here. The applicant, therefore, fails to separately state “the answer or interpretation and relief for which the applicant contends”. Next by O. 4, r. 3 (d) and Form 1 paragraph 4 requires an applicant to plead “the facts out of which the request arises”. The applicant’s pleadings in the application are far short and deficient when compared to the facts that were in contest and eventually found by David J, as I noted at [8] to [21] above. Finally, O. 4, r. 3 (e) and paragraph 5 of Form 1 of the SCRs requires an applicant to plead by the words “If a question of fact arises for determination by the Court on the application”, any fact that requires determination by the Court for the purpose of the application. This is necessary as it indicates in the relevant paragraph “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”. A substantial part of the relevant facts that were contested and eventually resolved by David J ’s decision, needed to be pleaded but the applicant failed to do that. This failure gives the impression that no facts are required or that the relevant facts are not in issue and there is no need for the Court to determine the relevant facts. The applicant failed to give in his application any foundation for a hearing and determination of the relevant facts. What happened in fact on this front, was without any foundation in the pleadings.
     
114. Finally, submissions appropriately have no place in pleading a cause of action in any proceeding and certainly Form 1 of the SCRs. They are best left for parties to present based on the pleadings at a hearing of the application. Despite that, the application before us incorporates submissions as noted above.
     

Other lack of pleadings

115. In addition to the foregoing failures, and given the facts as found by David J, it was most relevant and necessary for the applicant to plead but he failed to plead:
     

(1) His cause of action in terms of how his personal rights or interests were affected.

(2) What steps he took to mitigate his loss or damage and or how he was prevented from exercising his rights or how he was prevented from preventing his rights or interest from being adversely affected by what he now complains of; and

(3) How he is coming to the Court with clean hands given that the provisions he is taking issue with now pre-existed the events complained of and he was a beneficiary of the relevant provisions.

116. In addition to the above missing pleadings, there is also no pleading as to the basis upon which this Court is invited to reconsider the provisions of s 63 of the Organic Law on the Integrity of Political Parties and Candidates and other provisions of the Constitution, which were the subject of prior proceedings and the Court’s deliberate judgments, most of them published and two of which were noted in the findings of facts by David J. The decision of this Court in the Fly River Decision is an example of a case on point. In that case, the Court considered the constitutionality of the OLIPPAC, including s 63. The Court struck down certain of the provisions of that law and held others were valid. The valid parts include s 63, though not fully and separately considered. Given that, what I raised in the matter of Special Reference by the Ombudsman Commission 2019 (supra) at [111] is relevant. There I noted and asked:
     

... the question of failing an election was the subject of the Supreme Court decision in the Reference by Francis Damem. Hence, the question necessarily arises as to how there can be a reference on the same question. Has there been a change in the law or the circumstances that warrants a repeat reference? How, is this reference different to the earlier reference? What is it that is not clear from the decision in the earlier reference that a further reference is warranted? There is no answer to any of these questions. Hence, my decision to decline to answer this question.

117. To this I now add the principles governing the basis on which the Supreme Court can depart from its earlier decisions or precedent. The principles upon which, the Supreme Court can depart from its earlier decisions or precedent are well settled. I adopted and applied those principles in my decision in the 5-member Supreme Court decision in the matter of William Hagahuno v Johnson Tuke (2020) SC2018, Kandakasi DCJ, Kirriwom J (as he then was), Mogish, Manuhu and Makail JJ. That decision by deliberate judgment the Court unanimously decided to depart from decades of precedent. At [70] I stated the principles as follows:
     

70. As the foregoing discussions obviously favour a fresh look, revisit or a departure from the earlier case precedent of Biri v. Ninkama, and the long line of cases that follow it, it is necessary to consider the principles which governs departures from past precedents. I note, the principles governing a revisit and departure from earlier case precedent is well settled in our jurisdiction. I discussed those in detail in my decision with the agreement of my brother Yagi J in, Paru Aihi v Peter Isoaimo from paragraph 23 to 26. I wish not to repeat that discussion here except to restate what I made out of that at paragraph 27:

A careful consideration of the above authorities makes it clear that:

(a) the Supreme Court is not bound by its own earlier decisions;

(b) but in the interest of providing certainty and consistency in the law for the society’s guidance and for the avoidance of chaos and disorder, the Court cannot readily and easily depart for its earlier decision;

(c) departures within a short space of time is undesirable and should not be encouraged; and

(d) departures are permissible only in exceptional circumstances where:

(i) the earlier decision misinterpreted, misconceived, mistook or misunderstood the law which requires correction;

(ii) the law pronounced or stated in the earlier decision is no longer appropriate and applicable to the current prevailing circumstances and needs of the country; and

(iii) as a matter of practice, the Chief Justice must be part of a Court comprising of 5 Judges which may decide to depart from an earlier decision.

118. As I noted in the judgment, the discussions and summation of the principles in Paru Aihi v Peter Isoaimo (supra) have been adopted and applied in several subsequent decisions of this Court. They include the decisions in, Lovika v Malpo (2019) SC1895, per Kandakasi DCJ, Bona & Shepherd JJ; PNG Bible Church Inc v Carol Mandi (2018) SC1724, per Kandakasi J (as I then was), Toliken & Bona JJ and see also my dissenting view in Michael Kuman v Digicel (PNG) Ltd (2017) SC1638, Dekena v Kuman (2018) SC1715, per Kandakasi DCJ, Geita and Lindsay JJ; Jacob Sanga Kumba v Dr Nicholas Mann & Anor (2018) SC1710, per Kandakasi J (as I then was) and Yagi and Bona JJ and The Independent State of Papua New Guinea v Uddin (2022) SC2312, per Salika CJ, Murray and Anis JJ.
     
119. Then applying the principles to the Hagahuno v Tuke case, I noted as follows:
     

(a) this five-member Supreme Court is not bound by its own earlier decisions starting from the three-member Supreme Court decision in Biri v. Ninkama;

(b) in the interest of providing certainty and consistency in the law for the society’s guidance and for the avoidance of chaos and disorder, the Court has not readily and easily departed from its earlier decisions;

(c) departure from the Biri v Ninkama and the line of decisions following it have been called for and finally after more than 31 years later, this Court in Kikala v Electoral Commission departed from the decision in the Biri v Ninkama and the various decisions that follow it; and

(d) additionally, exceptional circumstances now exist which warrant a departure from the decision in Biri v Ninkama and its line of authorities because:

(i) that decision and those following it have misinterpreted, misconceived, mistook and or misunderstood the law as pointed out above which require correction in the terms discussed;

(ii) the law pronounced or stated in the earlier decisions are no longer appropriate and applicable to the current prevailing circumstances and needs of the country for the reasons also given above; and

(iii) although the Chief Justice is not a part of this Court comprising of 5 Judges, His Honour then as Deputy Chief Justice, was the president of the Court in Kikala v Electoral Commission which consciously commenced the departure from Biri v Ninkama and its line of cases.

120. What all these means is this. The applicant was required to plead in his application the basis on which this Court is asked to revisit its earlier decisions on point and depart from those earlier decisions. Such pleadings needed to answer the questions I raised in the Special Reference by the Ombudsman Commission 2019 (supra) and meet the requirements summarised in Aihi v Isoaimo (supra) to properly invite this Court to do what the applicant wants the Court to do. As noted, there is a complete absence of any such pleadings.
     

Matters outside the pleadings

121. As already mentioned, despite the lack of proper pleadings as required by O 4, r 3 (e) and paragraph 5 of Form 1 of the SCRs, certain facts became contested matters. Some of those facts went into the applicant being elected Prime Minister after the elections in the prior elections, through the process and the provisions of the Constitution and the OLIPPAC that are the subject of the applicant’s challenge in this proceeding. The issue on the facts were mainly taken by the applicant. That caused this Court to appoint his Honour, David J to hear and determine the relevant facts, which his Honour did.
     
122. Then at the hearing of the substantive matter, the applicant through learned counsel made it clear that one of the main reliefs he is seeking is a declaration that the election of Hon James Marape as Prime Minister following the 2022 National General Elections is null and void. He is also seeking other consequential reliefs such as a calling of Parliament and appointment of a new Prime Minister to be an agenda for Parliament. These are serious and substantive reliefs. Yet they are not pleaded in any manner or form. They clearly go against the provisions of O 4, r 3(c) of the SCRs and the numerous case law on point.
     
123. In a case like the present case, where the will of the majority of our people is exercised by our people’s representatives in the floor of Parliament or the legislative arm of government is challenged through the judicial arm or the Court, the Court needs to deal with the case in accordance with the relevant and applicable principles of law. The Court can best do that by ensuring it does not get into the field of play, so to speak, but continue to maintain and discharge its duty as an independent and impartial umpire by applying the relevant and applicable law which includes both the substantive and procedural law and any set precedent where there is one, unless a case is properly made out for any departure from any such precedents. As emphasised above, an applicant who comes under s 18(1) of the Constitution has the duty to plead his or her case with clarity and sufficiently, in terms of his or her cause of action, and the reliefs sought and, in the manner and form prescribed by the SCRs and the numerous case law on point. Where there is a failure in that respect, an intervener is entitled to take issue with that. When an issue is thus raised, the Court will do well by staying well within what is pleaded and sought rather than allowing for departures from what is pleaded and allow for matters not in fairness properly and clearly pleaded to be introduced. A failure to do so comes with the risk of the Court being accused of stepping into the shoes of one or more of the parties and attract unto itself accusations of being biassed or acting impartiality.
     
124. Having regard to all the matters mentioned and discussed above, I find the application in the present case incompetent and is therefore not properly before this Court. Proceeding on that basis, I would dismiss the application with costs against the applicant.
     

SUBSTANTIVE APPLICATION

125. Turning then to the second issue, which is on the substantive merits of the case, I have had the benefit of reading the draft decisions of the learned Chief Justice and that of my brother, Cannings J. I agree with his Honour Cannings J’s proposed answers to the questions presented and the orders his Honour proposes for the reasons his Honour gives. In addition to the reasons his Honour gives, I repeat my discussions and views on the need for an applicant in an application under s 18(1) of the Constitution to properly and sufficiently plead the constitutional questions, the relevant facts and the reliefs sought which the Applicant in the present case failed to do. This effectively means there is no foundation in the pleadings to grant any of the reliefs the applicant is seeking. Consequently, reliefs sought by the Applicant should be refused.
     
126. MOGISH J: I have had the benefit of reading the draft judgement of Cannings J and I agree with the reasoning and conclusions therein.
     
127. I wish to add some remarks on whether the first meeting of the 11^th Parliament was validly fixed and held on 9 August 2022 in compliance with the properly interpreted requirements of s 124 of the Constitution and s 1(1)(2) of the Organic Law on the Calling of Meetings of Parliament.
     
128. The undisputed facts and circumstances giving rise to this constitutional reference is set out in the judgment of Justice Cannings.
     

THE FIRST MEETING OF THE 11^TH PARLIAMENT ON 9 AUGUST 2022

129. On 1 August the Governor-General purported to fix 9 August 2022 as the date for the first meeting of Parliament pursuant to his powers in s 124(1) of the Constitution and s 1(1) of the Organic Law on the Calling of Meetings of the Parliament.
     

CONSTITUTION

_________

Organic Law on the Calling of Meetings of the Parliament

EXTENSION OF THE TIME AND DATE OF MEETING OF THE PARLIAMENT

I, GRAND CHIEF SIR BOB DADAE, GCL, GCMG, K St J, Governor-General, by virtue of the powers conferred by Section 124 of the Constitution and Section 1 of the Organic Law on the Calling of Meetings of the Parliament, after consultation with the outgoing Prime Minister and Speaker, and having extended the date of the return of writs for all electorates from 29^th July 2022 to 5^th August 2022, hereby fix 10 o’clock in the forenoon of Tuesday 9^th August 2022, as the time and date on which the Parliament shall meet for the first time after the 2022 general election.

Dated this Monday 1^st day of August 2022.

Sir Bob Dadae

GOVERNOR-GENERAL

130. Section 124 of the Constitution is in the following terms:
     

(1) The 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, and shall meet not less frequently than three times in each period of 12 months, and, in principle, for not less than nine weeks in each such period.

(2) An Organic Law shall make provision for the calling of meetings of the Parliament.

(3) Subject to Subsections (1) and (2), an Act of the Parliament or the Standing Orders of the Parliament may make provision in respect of the sittings of the Parliament.

131. Section 1 of the Organic Law on the Calling of Meetings of the Parliament provides:
     

(1) The 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 on which the Parliament shall meet for the first time after a general election.

(2) The 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.

(3) The Head of State shall—

(a) as soon as practicable after fixing a time and date under Subsection (1); and

(b) not less than 14 days before that date; and

(c) where a state of emergency has been declared, not less than seven days before that date,

cause a notice specifying that time and date to be forwarded by telegram or pre-paid post to each member of the Parliament.

132. The question arises as to the meaning or interpretation of the word “after” in s 1(1) of the Organic Law on the Calling of Meetings of the Parliament.
     
133. The Attorney-General submitted that in its present form, the interpretation is ambiguous. To overcome this ambiguity, it was submitted, the Court should insert a comma after the word “National Gazette”.
     
134. I reject this submission by the Attorney-General to the Court to insert a comma after the word National Gazette in s 1(1) of the Organic Law on the Calling of Meetings of the Parliament for reasons advanced by Justice Cannings. This submission invites the court to judicially legislate a provision of the Constitution. It is trite that any amendment to the Constitution must be done according to law. In this case any amendment to the provisions of s 1(1) of the Organic Law on the Calling of Meetings of the Parliament can only be done by Parliament. It is not the function of the Court to legislate a provision of any law, including the Constitution. The judiciary’s role is to interpret and apply the law, not to create it. The separation of power is a fundamental principle that the Constitution has embraced.
     
135. I accept the submission by the applicant that is the word or expression or the meaning of s 124(1) of the Constitution used in the Constitution is clear and capable of being accorded its plain or ordinary meaning. That being the case the Court should accord that meaning and apply it to the circumstances of the case before it.
     
136. What is clear is this. Section 124(1) of the Constitution imposes a mandatory requirement that the first meeting of Parliament be called only “after” the day fixed for return of the writs; and consistently with that, s 1(1) of the Organic Law on the Calling of Meetings of the Parliament imposes a mandatory requirement that the Parliament be called by notice of the Head of State published in the National Gazette “after” the day fixed for the return of the writs.
     
137. Applying the undisputed facts to the constitutional provisions of s 124 of the Constitution and s 1(1) of the Organic Law on the Calling of Meetings of the Parliament, the chronology is as follows:
     

1. 5^th of August 2022 - the date of the return of majority of writs.
   
2. 6^th of August 2022 - the first possible date for the notice to be published in the National Gazette.
   

100. 12^th August 2022 - the last date for the first meeting of Parliament, which must occur within seven (7) days of the majority return of writs as from the 5^th August 2022.
     

138. Did the Head of State comply with this constitutional requirement? The answer is no. The Head of State had no such power to call the first meeting of Parliament until after the 5^th of August 2022. The act or process adopted by the Head of State to call Parliament on the 1^st of August 2022 was in breach of s 1(1) of the Organic Law on the Calling of Meetings of the Parliament and to that extent, unconstitutional.
     
139. The question arises whether the Court should declare the subsequent proceedings concerning the election of the Speaker and the Prime Minister. I have also read the draft judgement of the Chief Justice.
     
140. Whilst the process in calling Parliament by the Head of State was in breach of s 1(1) of the Organic Law on the Calling of Meetings of the Parliament and is therefore unconstitutional, it was in accordance with the spirit, intent and purpose of s 124(1) of the Constitution and s 1(2) of the Organic Law on the Calling of Meetings of the Parliament. Parliament was called to sit for the first time to nominate the Speaker and the Prime Minister within the seven days after the return of the majority of the writs. There has been substantial compliance of the Constitution. The spirit, intent and purpose of the provision has been achieved.
     
141. CANNINGS J : The Honourable Peter O’Neill MP applies under s 18(1) of the Constitution for various declarations and orders regarding the first meeting of the National Parliament after the 2022 general election, on 9 August 2022, at which Hon James Marape MP was elected Prime Minister.
     
142. The applicant argues that:
     

• the 9 August 2022 meeting of the Parliament was unconstitutional due to the notice calling for that meeting being published on a date (1 August 2022) before the date fixed for return of the writs (5 August 2022) contrary to s 1(1) of the Organic Law on the Calling of Meetings of the Parliament;
  
• s 63 of the Organic Law on the Integrity of Political Parties and Candidates, which establishes the procedure that was followed for the election of the Prime Minister on 9 August 2022, is unconstitutional; and therefore
  
• the election of the Prime Minister on 9 August 2022 was unconstitutional.
  

INTERVENERS

143. Six parties were granted leave to intervene in the proceedings:
     

• first intervener, the Attorney-General, Hon Pila Niningi MP;
  
• second intervener, People’s National Congress;
  
• third intervener, Pangu Pati;
  
• fourth intervener, the Speaker of the National Parliament, Hon Job Pomat MP;
  
• fifth intervener, the Electoral Commission; and
  
• sixth intervener, the Registrar of Political Parties.
  

144. Only the second intervener supports the applicant’s position. The others oppose it. Led by the Attorney-General they argue that the application ought to be summarily dismissed on various grounds including that it is incompetent and fails to comply with the Supreme Court Rules, fails to plead appropriate relief, and is an abuse of process for being trivial, vexatious or hypothetical.
     
145. If the application is not summarily dismissed, they argue it has no merit, that the meeting of 9 August 2022 was constitutional, that s 63 of the Organic Law on the Integrity of Political Parties and Candidates is constitutional and that the election of the Prime Minister on 9 August 2022 was constitutional. They argue that the application ought to be entirely dismissed, with costs.
     

FACTS

146. The facts on which the application is based are uncontentious. They were settled by Justice David in his Honour’s findings of fact under Order 3 rule 3 of the Supreme Court Rules 2012 (Application by Hon Peter O’Neill MP, Findings of Fact by Justice David (2023) SC2481).
     
147. The date originally fixed for the return of the writs for the 2022 general election was 29 July 2022. On that date, the date fixed for the return of the writs was extended to 5 August 2022.
     
148. On 1 August 2022 the Governor-General (on behalf of the Head of State) published a notice in the National Gazette under s 1(1) of the Organic Law on the Calling of Meetings of the Parliament fixing 9 August 2022 as the date on which the Parliament shall meet for the first time after the general election.
     
149. The Parliament met on 9 August 2022 and, after electing the Speaker, elected the Prime Minister in accordance with the procedure in s 63 of the Organic Law on the Integrity of Political Parties and Candidates.
     

HEAD OF STATE

150. The three Constitutional Laws at the centre of this case – the Constitution, the Organic Law on the Calling of Meetings of the Parliament and the Organic Law on the Integrity of Political Parties and Candidates – confer various powers, functions, duties and responsibilities on the Head of State. By virtue of ss 82 and 83 of the Constitution, the present Head of State is the heir and successor to Her Majesty the Queen in the sovereignty of the United Kingdom of Great Britain and Northern Ireland, His Excellency King Charles III.
     
151. All references in the Constitutional Laws to the Head of State are to be taken as references to the Governor-General, in accordance with s 82(2) of the Constitution, which states:
     

Subject to and in accordance with this Constitution, the privileges, powers, functions, duties and responsibilities of the Head of State may be had, exercised and performed through a Governor-General appointed in accordance with Division 3 (appointment, etc, of Governor-General) and, except where the contrary intention appears, reference in any law to the Head of State shall be read accordingly.

ISSUES

152. Four issues arise:
     
1. Should the application be summarily dismissed for being incompetent?
   
2. Was the date of the first meeting of the Parliament after the 2022 general election fixed in breach of s 1(1) of the Organic Law on the Calling of Meetings of the Parliament?
   
3. Is s 63 of the Organic Law on the Integrity of Political Parties and Candidates unconstitutional?
   
4. What orders should the Court make?
   
1. SHOULD THE APPLICATION BE SUMMARILY DISMISSED FOR BEING INCOMPETENT?
   
153. The first intervener, the Attorney-General, supported by the interveners other than the second intervener, argued that for various reasons the Court should summarily dismiss the proceedings. It was argued that:
     

(a) the application does not formulate the declarations that are sought by the applicant;

(b) the application fails to set forth the proper interpretation or application of the provisions of the Constitutional Laws that are sought by the applicant;

(c) the application is so poorly pleaded it fails to state clearly the propositions advanced by the applicant;

(d) the facts out of which the application arises are poorly pleaded and fail to illuminate the issues to be addressed by the Court;

(e) the applicant has not rebutted the presumption of validity of Constitutional Laws;

(f) the applicant has not established a prima facie case of infringement of constitutional rights;

(g) there are previous decisions of the full court of the Supreme Court that have determined the questions raised in the application, against the propositions advanced by the applicant; and

(h) the applicant’s conduct, particularly that he benefited from the process he now complains about and the delay in making the application, disentitles him from the benefit of discretionary relief.

154. I am not persuaded by any of those arguments that the proceedings should be summarily dismissed, for two reasons.
     
155. First, some interveners have already applied for summary dismissal of the application. The first intervener, the Attorney-General, and the sixth intervener, the Registrar of Political Parties, filed notices of objection to competency of the application; the third intervener, Pangu Pati, applied for summary dismissal of the application on the ground of abuse of process. The full court of the Supreme Court (Kandakasi DCJ, Batari J, Mogish J, Hartshorn J and Makail J) refused both objections to competency and the application for summary dismissal (Application by O’Neill (2023) SC2400).
     
156. Though each Judge other than Hartshorn J and Makail J (who delivered a joint judgment) gave a separate judgment, the reasoning was the same: once the Court makes a declaration that the applicant has standing, the declaration is a final order of the Court, which incorporates a determination as to the significance of the constitutional issues raised by the application and the form and content of the application. The declaration cannot be reviewed and no subsequent objections to competency or applications for summary dismissal of the application ought to be entertained Once an applicant is declared to have standing, interveners in a s 18(1) Constitution proceeding should focus on the merits of the application, which should be presumed to be properly before the Court.
     
157. In this case, the Court on 24 October 2022 made a declaration that the applicant has standing to make the application. The arguments now being raised by the Attorney-General have been made too late.
     
158. Secondly, though it is unnecessary to address the Attorney-General’s preliminary arguments, none of them, in my view, warrant summary dismissal of the proceedings, for the following reasons.
     

(a) The application, in my view, adequately formulates the declarations that are sought by the applicant, as it seeks:

• a declaration that “Parliament has not been constitutionally called to sit on 9 August 2022” (page 6, paragraph 3(j) of the further, further amended application filed 8 August 2022);
  
• a declaration that s 63 of the Organic Law on the Integrity of Political Parties and Candidates is “unconstitutional and invalid, under s 11 of the Constitution” (page 6, paragraph 3(i) of the further, further amended application filed 8 August 2022); and
  
• “such other declarations or other orders as the Supreme Court sees fit” (page 7, paragraph 3(j) of the further, further amended application filed 8 August 2022).
  

(b) The application, in my view, adequately sets out in paragraphs 3 and 4 of the further, further amended application filed 8 August 2022, the proper interpretation or application of the provisions of the Constitutional Laws that are sought by the applicant.

(c) The application, in my view, is not so poorly pleaded that it fails to state clearly the propositions advanced by the applicant. While it is not a perfectly drawn document, upon careful reading the fundamental propositions advanced by the applicant are quite clear. Those interveners opposing the application, and the Court, are put on notice as to what the applicant’s case is. I have considered the principle that substantial compliance with the Supreme Court Rules 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 in which an applicant is challenging the will of the Parliament as to which of its members ought to hold office as Prime Minister. The Court must insist on strict compliance with the Rules (Application by Namah (2020) SC1934). I am satisfied that that standard has been met in this case.

(d) The facts out of which the application arises are, in my view, not poorly pleaded and do not fail to illuminate the issues to be addressed by the Court. In any event all the facts including contentious issues of fact necessary for determination of the application have been settled by Justice David (Application by Hon Peter O’Neill MP, Findings of Fact by Justice David (2023) SC2481).

(e) The argument that the applicant has not rebutted the presumption of validity of Constitutional Laws can only be determined after hearing of the application.

(f) The applicant’s failure to establish a prima facie case of infringement of constitutional rights is an irrelevant consideration. This is not a case in which the applicant’s cause of action is breach of his constitutional rights. It is a public law action in which the applicant claims that there was a meeting of the Parliament that was unconstitutional; he also claims that at that meeting the Prime Minister was elected by following the procedure in s 63 of the Organic Law on the Integrity of Political Parties and Candidates, which is unconstitutional.

(g) The two decisions that the Attorney-General claims have provided opinions against the position now contended for by the applicant are SC Ref No 11 of 2008, Reference by Fly River Provincial Executive re Organic Law on the Integrity of Political Parties and Candidates [2010] 2 PNGLR 319 (referred to in submissions as “the Fly River case”) and SC Ref No 4 of 2017, Reference by the Ombudsman Commission re Return of the Writs for General Election (2019) SC1814 (referred to in submissions as “the Ombudsman reference”).

The Fly River case was a s 19 reference that generally challenged (on procedural grounds) the constitutional validity of the Organic Law on the Integrity of Political Parties and Candidates and specifically challenged (on grounds regarding an unauthorized restriction on the rights of members of the Parliament in s 50 of the Constitution) the constitutional validity of some of its provisions. The Supreme Court (Injia CJ, Salika DCJ, Sakora J, Kirriwom J, Gavara-Nanu J) delivered a unanimous opinion, which rejected the proposition that the whole of the Organic Law was unconstitutional but held that some of its provisions were unconstitutional: ss 57-61, 65-67, 69 and 70, 72 and 73 and 81 were declared unconstitutional. The Court remarked in the final paragraph of its judgment that “the operation of the bulk of the Organic Law on the Integrity of Political Parties and Candidates provisions are not affected by this decision and remain in force”. It is clear that because of that case, s 63 remains in force. It was not declared unconstitutional. But that is not the same thing as saying that there is a binding opinion expressed by the Supreme Court following full argument on the issue, that s 63 is constitutional. Section 63 was not the focal point of the questions before the Court. It is my understanding that the applicant’s contention in the present case that s 63 is unconstitutional was not raised in the Fly River case. If it was raised, it was not addressed directly. It is incorrect to assert that the question of the constitutionality of s 63 has been settled or completely answered.

The Ombudsman reference was a s 19 reference by the Ombudsman Commission focused on the constitutionality of s 177 (extension of time) of the Organic Law on National and Local-level Government Elections. Section 177 provides for the extension of time for the return of the writs in an election, including a general election, and the consequences of delay in the return of writs in a general election. The Judges (Salika CJ, Kandakasi DCJ, Mogish J and Manuhu J) each gave a separate opinion on the numerous questions put before them. None of them addressed, let alone settled, the requirements of s 1(1) of the Organic Law on the Calling of Meetings of the Parliament, which is at the centre of the present case. The Attorney-General’s argument that the Ombudsman reference settled or completely answered any of the applicant’s propositions is meritless.

I reject the contention that those two Supreme Court decisions have determined the questions raised in the present case.

(h) The question of whether the applicant’s conduct including the alleged delay in commencing the proceedings “disentitles” him from being granted the discretionary relief he seeks (declarations as to the unconstitutionality of the Parliament’s meeting and its election of the Prime Minister on 9 August 2022 and s 63 of the Organic Law on the Integrity of Political Parties and Candidates) can in my view only properly be considered if the Court gets to the stage where it needs to consider remedies that ought to be granted.

It will only get to that stage if the applicant persuades the Court that one or more of his principal propositions should be upheld. The applicant’s conduct is not something that warrants summary dismissal of the proceedings. It is not something that warrants further consideration at this stage.

Resolution of issue 1

159. No, the application should not be summarily dismissed. The declaration of 24 October 2022 that the applicant had standing to make the application foreclosed the issue of whether the proceedings ought to be summarily dismissed for being incompetent. In any event, the arguments for summary dismissal are without merit. The application should be determined on its own merits.
     
2. WAS THE DATE OF THE FIRST MEETING OF THE PARLIAMENT AFTER THE 2022 GENERAL ELECTION FIXED IN BREACH OF SECTION 1(1) OF THE ORGANIC LAW ON THE CALLING OF MEETINGS OF THE PARLIAMENT?
   
160. The applicant contends that the date of the first meeting of the Parliament after the 2022 general election – 9 August 2022 – was fixed in breach of s 1(1) (calling of first meeting after a general election) of the Organic Law on the Calling of Meetings of the Parliament. Another contention, subsidiary to that principal contention, is that s 1(3) of that Organic Law is unconstitutional. Section 1 states:
     

(1) The 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 on which the Parliament shall meet for the first time after a general election.

(2) The 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.

(3) The Head of State shall—

(a) as soon as practicable after fixing a time and date under Subsection (1); and

(b) not less than 14 days before that date; and

(c) where a state of emergency has been declared, not less than seven days before that date,

cause a notice specifying that time and date to be forwarded by telegram or pre-paid post to each member of the Parliament.

161. Section 1(1) of the Organic Law requires the Governor-General (on behalf of the Head of State) to “fix the time and date on which the Parliament shall meet for the first time after a general election” and in doing so, comply with two requirements. The time and date must be fixed:
     

• “after consultation with the outgoing Prime Minister and Speaker”; and
  
• “by notice published in the National Gazette after the date fixed for the return of the writs for the general election”.
  

162. The cognate expression “the day fixed for the return of the writs for a general election” is defined by sch 1.2 (meaning of certain expressions) of the Constitution to mean:
     

(a) in the case of a general election where there is no extension of the 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.

163. There is in my view no material difference between the two expressions “the date fixed for the return of the writs for the general election” used in s 1(1) of the Organic Law, and “the day fixed for the return of the writs for a general election”, defined in sch 1.2 of the Constitution. By virtue of sch 1.1(1), the definition in sch 1.2 might not apply in s 1 of the Organic Law on the Calling of Meetings of the Parliament if “the contrary intention appears”. However, there is no such contrary intention apparent.
     
164. The date fixed for the return of the writs for the 2022 general election was 5 August 2022 (having been extended from 29 July 2022). It is agreed that the Governor-General consulted the outgoing Prime Minister and Speaker and then fixed the time and date on which the Parliament shall meet for the first time as 10.00 am on 9 August 2022. His Excellency did so by notice published in National Gazette No G600 of 1 August 2022 in the following terms:
     

CONSTITUTION

_________

Organic Law on the Calling of Meetings of the Parliament

TIME AND DATE OF MEETING OF THE PARLIAMENT

I, GRAND CHIEF SIR BOB DADAE, GCL, GCMG, K St J, Governor-General, by virtue of the powers conferred by Section 124 of the Constitution and Section 1 of the Organic Law on the Calling of Meetings of the Parliament, after consultation with the outgoing Prime Minister and Speaker, and having extended the date of the return of writs for all electorates from 29^th July 2022 to 5^th August 2022, hereby fix 10 o’clock in the forenoon of Tuesday 9^th August 2022, as the time and date on which the Parliament shall meet for the first time after the 2022 general election.

Dated this Monday 1^st day of August 2022.

Sir Bob Dadae

GOVERNOR-GENERAL

165. It is the date of publication of that notice in the National Gazette – 1 August 2022 – that is critical. The applicant, supported by the second intervener, PNC, contends that the notice was published prematurely. It could only be published, in compliance with s 1(1) of the Organic Law, after the date fixed for the return of the writs for the general election, 5 August 2022. The earliest it could be published was 6 August 2022.
     
166. I agree that that proposition is consistent with the plain meaning of the words in s 1(1). It also appears to be consistent with s 124 (calling etc) of the Constitution, which provides:
     

(1) The 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, and shall meet not less frequently than three times in each period of 12 months, and, in principle, for not less than nine weeks in each such period.

(2) An Organic Law shall make provision for the calling of meetings of the Parliament.

(3) Subject to Subsections (1) and (2), an Act of the Parliament or the Standing Orders of the Parliament may make provision in respect of the sittings of the Parliament.

167. In this case the day fixed for the return of the writs was 5 August 2022. The Parliament was to be called to meet not more than seven days after that day, ie by 12 August 2022. It was called to meet on 9 August 2022, so there is no problem with the date on which it met. It was compliant with s 124(1). The contentious issue remains the date of publication of the notice in the National Gazette.
     
168. The Attorney-General, supported by the other interveners apart from the second intervener, contends that the interpretation of s 1(1) of the Organic Law on the Calling of Meetings of the Parliament advanced by the applicant makes no sense when s 1(1) is read in the context of the whole of s 1. The most important requirement is in s 1(2): the date on which the Parliament shall meet for the first time shall be not more than seven days after the date fixed for the return of the writs for the general election. This is consistent with s 124(1) of the Constitution.
     
169. Section 1(3) provides that the Governor-General shall as soon as practicable after fixing the time and date on which the Parliament shall meet and not less than 14 days before that date (apart from where a state of emergency is declared, in which case it is seven days before that date) cause a notice specifying that time and date to be forwarded by telegram or pre-paid post to each member of the Parliament.
     
170. The Attorney-General argues that s 1(3) can only be given effect if the event in s 1(1) that must occur after the date fixed for the return of the writs for the general election is the first meeting of the Parliament, not the publication of the notice of the first meeting in the National Gazette.
     
171. It is argued that the real purpose and effect of s 1(1) can be understood by inserting a comma after the words National Gazette, as follows:
     

The 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 on which the Parliament shall meet for the first time after a general election.

172. I am not persuaded by that argument. I am reluctant to insert a comma into a constitutional provision which already has two commas, which must be presumed to have been placed deliberately in the spots at which they are placed, to elicit the intended meaning of the provision. However, if I were persuaded to overcome my reluctance and allow the interloping comma to do its work, the meaning of s 1(1) would not change. The notice would still need to be published in the National Gazette after the date fixed for the return of the writs for the general election.
     
173. I cannot read s 1(1), when it is read alongside s 1(2) and s 124(1) of the Constitution, in any way other than that contended for by the applicant.
     
174. I can see a possible obstacle in the path of the applicant’s interpretation of s 1(1) in s 1(3). On its terms, this subsection requires the Governor-General to cause a notice specifying the time and date of the first meeting of the Parliament to be forwarded to each member of the Parliament as soon as practicable after the time and date has been fixed, and not less than 14 days before that date.
     
175. In the present case, according to the applicant’s interpretation, notice of the time and date of the first meeting of the Parliament – 10.00 am on 9 August 2022 – should have been published in the National Gazette no earlier than 6 August 2022. It was possible to fulfill the requirement of s 1(3)(a) to forward a notice to each MP “as soon as is practicable” after 6 August 2022. But it was not possible to fulfil the requirement of s 1(3)(b) that the notices be forwarded not less than 14 days before 9 August 2022, ie by 26 July 2022.
     
176. By contrast, according to the Attorney-General’s interpretation of s 1(1), publication of the notice in the National Gazette can occur at any time, so there was no problem with publishing the notice on 1 August 2022. No breach of s 1(1) occurred.
     
177. However, there would still have been a breach of s 1(3)(b). So, whichever interpretation is preferred, compliance with s 1(3)(b) will be problematic. I am not convinced that the plain meaning of the words in s 1(1) should be departed from.
     
178. I am of the view that s 1(1) means what it says: the notice of the time and date of the first meeting of the Parliament shall be “published in the National Gazette after the date fixed for the return of the writs for the general election”, The notice should have been published after 5 August 2022. The notice was published before 5 August 2022, on 1 August 2022. Section 1(1) was breached.
     
179. As for the consequences of this breach of the Organic Law, I will leave that for later when I address the issue of remedies or as I described it earlier, issue (4): what orders should the Court make?
     

Constitutionality of s 1(3)

180. There is one other matter to address: what is the status of s 1(3) of the Organic Law on the Calling of Meetings of the Parliament? The applicant contends that its requirement that 14 days before the date fixed for the first meeting of the Parliament after a general election, each member of the Parliament be forwarded by telegram or pre-paid post a notice of the time and date of the meeting, is so problematic, unworkable, and almost impossible to adhere to, the whole of the subsection should be struck down as unconstitutional.
     
181. I am persuaded by that argument. I think that s 1(3) serves no useful purpose, especially in this age of instant communications. No person elected to the Parliament in a general election could reasonably say that they were unaware of the time and date of the first meeting of the Parliament. They don’t need to get a notice by pre-paid post or telegram to be told when the Parliament is meeting.
     
182. It will cause no prejudice to anyone if s 1(3) is struck down. It will save time and money if there is no requirement to give notice under s 1(3). It will add clarity to the procedures to be adhered to.
     
183. It is a very peculiar requirement as the duty to give notice to each MP is cast upon the Governor-General. The Governor-General is expected to be the one sending notices to the members of the Parliament, yet s 1(3) does not say who is to advise His Excellency that he must do this or how or when it is to be done. Section 1(3) imposes a duty on the Governor-General but does not state on whose advice that duty is to be performed. This seems non-compliant with s 86(2) (functions etc) of the Constitution, which provides:
     

Except as provided by Section 96(2) (terms and conditions of employment), in the exercise and performance of his privileges, powers, functions, duties and responsibilities the Head of State shall act only with, and in accordance with, the advice of the National Executive Council, or of some other body or authority prescribed by a Constitutional Law or an Act of the Parliament for a particular purpose as the body or authority in accordance with whose advice the Head of State is obliged, in a particular case, to act.

184. I would for the above reasons uphold the applicant’s submission that s 1(3) is unconstitutional.
     

Resolution of issue 2

185. Yes, the date of the first meeting of the Parliament after the 2022 general election was fixed in breach of s 1(1) of the Organic Law on the Calling of Meetings of the Parliament. Furthermore s 1(3) of that Organic Law is unconstitutional.
     
3. IS SECTION 63 OF THE ORGANIC LAW ON THE INTEGRITY OF POLITICAL PARTIES AND CANDIDATES UNCONSTITUTIONAL?
   
186. The applicant contends that s 63 (invitation to form Government) of the Organic Law on the Integrity of Political Parties and Candidates restricts or prohibits the exercise by members of the Parliament of their right, under s 50 of the Constitution, to take part in the public affairs of Parliament and their opportunity of being elected Prime Minister.
     

Section 63 of the Organic Law

187. It states:
     

(1) Subject to Subsection (2), on the date of the return of the writs in a general election, the Electoral Commission shall advise the Head of State of the registered political party which has endorsed the greatest number of candidates declared elected in the election, and the Head of State, acting with, and in accordance with, the advice of the Electoral Commission, shall invite that registered political party to form the Government in accordance with this section.

(2) Where two or more registered political parties have endorsed an equal number (being the greatest number) of candidates declared elected in the election, the Electoral Commission shall so advise the Head of State, and the Head of State, acting with, and in accordance with, the advice of Electoral Commission, shall invite the registered political party with the highest votes declared in the election to form the Government.

(3) An invitation under Subsection (1) or invitations under Subsection (2) shall be -

(a) conveyed to the public office of the registered political party or registered political parties, as the case may be; and

(b) notified to the Clerk of Parliament; and

(c) published in the National Gazette.

(4) At the first meeting of the Parliament following a general election, being a meeting at which the Prime Minister is to be elected, the registered political party to whom the invitation has been made may nominate a candidate for election of the Prime Minister.

(5) Where -

(a) a candidate is nominated under Subsection 4(a) - the Parliament shall vote as to whether that candidate is to be elected Prime Minister; or

(b) a candidate is or candidates are nominated under Subsection (4)(b),

the Parliament shall vote as to whether that candidate, or any of those candidates, is to be elected Prime Minister.

(6) Where -

(a) the candidate nominated under Subsection (4)(a); or

(b) a candidate nominated under Subsection (4)(b),

receives a simple majority of the votes in the election of Prime Minister, the Speaker shall advise the Head of State that the candidate has been elected Prime Minister by the Parliament.

(7) Where -

(a) a registered political party to whom an invitation has been made under Subsection (1) or (2) declines or fails to nominate a candidate under Subsection (4); or

(b) a nominated candidate under Subsection (4) fails to receive a simple majority of the votes in the election under Subsection (5),

the Parliament shall otherwise elect a Prime Minister in accordance with Standing Orders of the Parliament.

(8) In an election of a Prime Minister under Subsection (7) -

(a) a registered political party, who declined to nominate a candidate under Subsection (4), may nominate a candidate; and

(b) a nominated candidate, who failed to receive a simple majority of votes in an election under Subsection (5), may be nominated.

188. Section 63 caters for several different scenarios (eg where two or more registered political parties endorse an equal number of candidates or where a registered political party declines to nominate a candidate) but in the most expected scenario, such as in 2022 where one registered political party endorsed the greatest number of candidates, which duly nominated a candidate for Prime Minister, it prescribes the following procedure for election of a Prime Minister:
     
189. Step 1: on the date of the return of the writs in a general election:
     

• the Electoral Commission advises the Governor-General of the registered political party which has endorsed the greatest number of candidates declared elected in the election, and
  
• the Governor-General, acting with, and in accordance with, the advice of the Electoral Commission, invites that registered political party to form the Government by conveying the invitation to the public office of the registered political party and notifies the Clerk of Parliament and publishes the invitation in the National Gazette.
  

190. Step 2: at the first meeting of the Parliament following the general election, the registered political party to whom the invitation has been made, nominates its candidate for election of the Prime Minister.
     
191. Step 3: the Parliament votes as to whether that candidate is to be elected Prime Minister. If that candidate receives a simple majority of the votes, the Speaker advises the Governor-General that the candidate has been elected Prime Minister by the Parliament.
     
192. Step 4, which is only necessary if the registered political party to whom an invitation has been made declines or fails to nominate a candidate or if its nominated candidate fails to receive a simple majority of the votes in the election: the Parliament elects the Prime Minister in accordance with the Standing Orders of the Parliament.
     

Section 50 of the Constitution

193. It states:
     

(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—

(a) is under sentence of death or imprisonment for a period of more than nine months; or

(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph,

has the right, and shall be given a reasonable opportunity—

(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e) to hold public office and to exercise public functions.

(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.

194. I pointed out in SC Ref No 2 of 2020, Reference by the Bougainville Executive re Sections 89(2) and 91(4)(f) of the Bougainville Constitution (2020) SC1952 that s 50(1) rights are conferred on persons having the following characteristics (prescribed by ss 50(1)(a), (b) and (c)):
     

• is a PNG citizen;
• is of full capacity (ie he or she is not of unsound mind, as per sch 1.2(1) of the Constitution);
• has reached voting age (which is 18 years of age, per s 126(3) (elections) of the Constitution);
• is not under sentence of death;
• is not under a sentence of imprisonment for a period of more than nine months;
• has not been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections (that is prescribed by an Organic Law or an Act of the Parliament for the purposes s 50(1)(b)); and
• does not have dual citizenship of another country.
  

195. The Supreme Court in SC Ref No 6 of 2022, Reference by Attorney-General and Principal Legal Adviser re Disqualifications from Membership of the Parliament (2022) SC2244 clarified that the following rights are conferred by ss 50(1)(c), (d) and (e):
     

• to directly take part in the conduct of public affairs (s 50(1)(c));
• to take part in the conduct of public affairs through freely chosen representatives (s 50(1)(c));
• to vote for elective public office at genuine, periodic, free elections (s 50(1)(d));
• to be elected to elective public office at genuine, periodic, free elections (s 50(1)(d));
• to hold public office (s 50(1)(e));
• to exercise public functions (s 50(1)(e)); and
• to be given a reasonable opportunity to exercise all those rights (s 50(1)(c), (d) and (e)).
  

196. Section 50(2) provides that the exercise by holders of s 50(1) rights of those rights:
     

• is subject to any express limitations provided by the Constitution; and
  
• may be regulated by a law that “is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind”.
  

The applicant’s case

197. The applicant relies on the unanimous opinion of the Supreme Court in SC Ref No 11 of 2008, Reference by Fly River Provincial Executive re Organic Law on the Integrity of Political Parties and Candidates [2010] 2 PNGLR 319, that the Organic Law on the Integrity of Political Parties and Candidates does not permit anything more than a regulation of s 50 rights. This is made clear by sch 1.20 of the Constitution, which provides:
     

A provision of a Constitutional Law that provides for the regulation of an act or thing does not extend to prohibition, whether in law or in effect.

198. The applicant points out that in SC Ref No 11 of 2008 the Supreme Court emphasised the importance of maintaining the distinction between regulation and restriction of constitutional rights by stipulating that several amendments to the Constitution (amendments to ss 12(4), 111, 114(5) 127 and 130) that preceded the making of the Organic Law on the Integrity of Political Parties and Candidates were ineffective to the extent that they authorised the restriction or prohibition of the exercise of s 50 rights.
     
199. The applicant argues that s 63 of the Organic Law restricts and/or prohibits the free exercise by each member of the Parliament of their s 50 constitutional rights in a number of different ways.
     
200. First, s 63 takes out of the hands of members of the Parliament the right to nominate a candidate for the office of Prime Minister. By s 63(4), that right is given to a political party, the one that has endorsed the greatest number of candidates declared elected in the election. A political party comprises an executive and a membership comprising any number of people who are not members of the Parliament. This restricts the exercise of the opportunity each member of Parliament (and the people they each represent) would otherwise have to participate in the nomination of candidates for election to the office of Prime Minister. It therefore restricts the exercise of the rights of members of Parliament to take part in the conduct of public affairs contrary to s 50(1)(c) of the Constitution.
     
201. Secondly, s 63 restricts or prohibits the opportunity that all members of the Parliament would otherwise have to hold the office of Prime Minister and exercise the functions of that office. This is argued to be a restriction on the right of a member of the Parliament to hold public office and contrary to s 50(1)(e) of the Constitution.
     
202. Thirdly, s 63 has the potential to operate arbitrarily in favour of the registered political party that happens to have on a particular day that is not the day of election of the Prime Minister, endorsed the greatest number of candidates declared elected in the election. The day prescribed by s 63(1) to be the day on which the Electoral Commission is to advise the Governor-General of the registered political party which has endorsed the greatest number of candidates declared elected in the election is “the date of the return of the writs”. This is to be regarded, in my view, as the same date as the more common expression “the date fixed for the return of the writs” (which is used in s 124(1) of the Constitution). In the present case it was 5 August 2022. That was also the day on which the invitation of the Governor-General to form the government was to be conveyed to the public office of the relevant registered political party and notified to the Clerk of the Parliament and published in the National Gazette.
     
203. Interestingly, in the present case those things did not happen or at least the Governor-General’s invitation and publication of the invitation did not happen until two or three days later, on 8 or 9 August 2022 when the following instrument was published in National Gazette No G628 of 9 August 2022:
     

Organic Law on the Integrity of Political Parties and Candidates

________

TO: DOGIMAI MORRIS TOVEBAE, Public Officer of Pangu Pati Inc

I, GRAND CHIEF SIR BOB DADAE, GCL, GCMG, K St J, Governor-General, by virtue of the powers conferred by Section 63 of the Organic Law on the Integrity of Political Parties and Candidates and all other powers me enabling, acting with, and in accordance with, the advice of, the Electoral Commission, hereby invite PANGU PATI Inc, being a registered political party which has endorsed the greatest number of candidates declared elected in the 2022 National Elections, to form the Government.

Dated this 8^th day of August 2022.

Sir BOB DADAE

Governor-General

204. The applicant points out that on 5 August 2022 only 83 out of 117 writs had been returned, while on the day of the first meeting of the Parliament a further 24 writs had been returned. The applicant argues that s 63 sanctions a circumstance in which, by the time of the first meeting of the Parliament the party that is invited to nominate its candidate for Prime Minister is not in fact the party with the most endorsed members elected to the Parliament at that point in time. It is argued that the substantial increase in the number of members of the Parliament in the period from 5 to 9 August 2022 demonstrates that such a circumstance is no mere theoretical possibility. Further, that the members of the Parliament excluded by s 63 from the exercise of their rights under ss 50(1)(c) and 50(1)(e) may include members of the largest party at the time of the first meeting of the Parliament.
     
205. Finally the applicant asserts that, though it can be argued that s 63 affords the members of the Parliament who are members of the political party which has endorsed the greatest number of candidates declared elected in the election the opportunity to exercise their s 50 rights through participation in the internal machinations of their party, s 63 still restricts or prohibits the exercise of those rights by those members of the Parliament who are not members of that party. This is argued to reinforce the restriction or prohibition of rights under ss 50(1)(c) and (e) of the Constitution.
     

My opinion

206. I am not persuaded by any of the applicant’s arguments that s 63 of the Organic Law on the Integrity of Political Parties and Candidates restricts or prohibits the exercise by any member of the Parliament of their rights under ss 50(1)(c) or 50(1)(e) of the Constitution.
     
207. I have considered the distinction between on the one hand restriction or prohibition and on the other hand regulation of s 50 rights that has been drawn and applied by the Supreme Court in three cases: SC Ref No 2 of 1982, Reference by Ombudsman Commission re Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214, SC Ref No 1 of 1992, Reference by Ombudsman Commission re Organic Law on National Elections (Amendment No 1 Law) 1991 [1992] PNGLR 73 and SC Ref No 11 of 2008, Reference by Fly River Provincial Executive re Organic Law on the Integrity of Political Parties and Candidates [2010] 2 PNGLR 319.
     
208. I have also considered the law on onus of proof in constitutional cases. Whatever the nature of the case, whether it is an application under s 18(1) of the Constitution or a reference of constitutional questions to the Supreme Court under s 18(2) or s 19 of the Constitution or any other case in which a person seeks a declaration that a provision of any law made by the Parliament is unconstitutional, there is a presumption as to the validity of the law (SC Ref No 2 of 1982, Reference by Ombudsman Commission re Organic Law on National Elections (Amendment) Act 1981, [1982] PNGLR 214, The State v NTN Pty Ltd & NBN Ltd [1992] PNGLR 1).
     
209. Except where the case is one involving a question of compliance with the requirements of s 38 (general qualifications on qualified rights) – and the present case is not such a case – the onus of proving unconstitutionality and rebutting the presumption of validity rests with the party alleging unconstitutionality. In the present case, that is the applicant.
     
210. In my view the applicant has not rebutted the presumption of the validity of s 63. He has not proven that s 63 is going further than regulating the s 50 constitutional rights of members of the Parliament.
     
211. I uphold the Attorney-General’s submission that the purpose of s 63 is to establish a procedure for election of a Prime Minister and to set down conditions before s 50 rights can be exercised. Once a candidate for Prime Minister has been nominated by the registered political party that has endorsed the greatest number of candidates declared elected in the election, each member of the Parliament is free to campaign against or for or otherwise by legitimate means influence other members of the Parliament to vote for or against the nominated candidate. If the nominated candidate fails to receive a simple majority of votes the Prime Minister is elected by the Parliament in accordance with the Standing Orders.
     
212. I agree with the Attorney-General that the provisions of the Organic Law on the Integrity of Political Parties and Candidates that were declared in SC Ref No 11 of 2008 to be unconstitutional were of a fundamentally different character to s 63.
     
213. Moreover, though I am of the view that the opinion of the Supreme Court in SC Ref No 11 of 2008 that s 63 was, by inference, constitutional, was not determinative of the issue (in that the question was not expressly raised in the s 19 reference in that case), I consider that that opinion is now, having heard argument on the issue, of great significance. With respect, I adopt that opinion, which was expressed by the learned members of the Supreme Court in that case, that s 63 of the Organic Law is indeed constitutional.
     

Resolution of issue 3

214. No, s 63 of the Organic Law on the Integrity of Political Parties and Candidates is not unconstitutional.
     

4 WHAT ORDERS SHOULD THE COURT MAKE?

215. I have refused the application for summary dismissal of these proceedings and would make an order accordingly.
     
216. I have upheld the applicant’s argument that the requirement of s 1(1) of the Organic Law on the Calling of Meetings of the Parliament that the notice in the National Gazette fixing the time and date of the first meeting of the Parliament after a general election be published after the date fixed for the return of the writs was not complied with. The time and date of the first meeting of the Parliament was fixed and notice of it was published on 1 August 2022, which was before the date fixed for the return of the writs, 5 August 2022.
     
217. Does that mean that the meeting of the Parliament on 9 August 2022 was unconstitutional? No. Section 1 of the Organic Law on the Calling of Meetings of the Parliament does not indicate the consequences of failure to comply with the notice requirement of s 1(1). There was no breach of the overriding requirement of s 124(1) of the Constitution that the Parliament be called to meet not more than seven days after the day fixed for the return of the writs (as the Parliament met four days after the date fixed for the return of the writs). There is no evidence of any prejudice to any member of the Parliament including the applicant. In the circumstances of this case, breach of s 1(1) was in my view inconsequential. I would refuse to grant a declaration that the meeting of the Parliament on 9 August 2022 was unconstitutional.
     
218. I have upheld the applicant’s argument that s 1(3) of the Organic Law on the Calling of Meetings of the Parliament is unnecessary and unworkable and is unconstitutional. I would make a declaration accordingly.
     
219. I have refused the applicant’s argument that s 63 of the Organic Law on the Integrity of Political Parties and Candidates is unconstitutional. I would refuse to grant the declaration sought by the applicant in relation to that provision.
     
220. I would refuse all other relief sought by the applicant.
     
221. As to costs, I would order the parties to bear their own costs for these reasons:
     

• the applicant obtained a declaration that he had standing;
• the questions he raised were significant constitutional issues;
• he has repelled a concerted attempt by way of an informal application to have his application summarily dismissed;
• he succeeded in proving that a breach of an Organic Law occurred; and
• he succeeded in proving that a provision of that Organic Law is unconstitutional.
  

222. I would make an order in these terms:
     
1. The application to dismiss the application for being incompetent is refused.
   
2. It is declared that the requirement of s 1(1) of the Organic Law on the Calling of Meetings of the Parliament that the notice in the National Gazette fixing the time and date of the first meeting of the Parliament after the 2022 general election be published after the date fixed for the return of the writs was not complied with.
   
3. It is declared that noncompliance with s 1(1) of the Organic Law on the Calling of Meetings of the Parliament in respect of the 2022 general election was in the circumstances of this case inconsequential.
   
4. The applicant’s application for a declaration that the meeting of the Parliament on 9 August 2022 was unconstitutional, is refused.
   
5. It is declared that s 1(3) of the Organic Law on the Calling of Meetings of the Parliament is unconstitutional.
   
6. The applicant’s application for a declaration that s 63 of the Organic Law on the Integrity of Political Parties and Candidates is unconstitutional, is refused.
   
7. The applicant’s application for a declaration that the election of the Prime Minister at the meeting of the Parliament on 9 August 2022 was unconstitutional, is refused.
   
8. All other relief sought by the applicant is refused.
   
9. Subject to any specific costs orders made during the proceedings, the parties shall bear their own costs of the proceedings.
   
223. KARIKO J: I have had the benefit of reading the draft judgment of Cannings J and I agree with the reasoning and conclusions therein.
     
224. I add brief remarks in relation to two of the relevant issues, namely:
     
1. Should the application be dismissed as incompetent?
2. Was s 1(1) of the Organic Law on the Calling of Meetings of the Parliament breached in the calling of the first meeting of the Parliament?
   

COMPETENCY

225. On 26 May 2023, the full court (Kandakasi DCJ, Batari J, Mogish J, Hartshorn J and Makail J) in this same application heard several objections to competency and an application for summary dismissal and declined them: Application by O’Neill (2023) SC2400. The Court held that the earlier declaration by the court that the applicant has standing to make the application was a final order which cannot be reviewed, and that the determination assumed a finding that the application is competent. See the remarks of Kandakasi DCJ at [19]-[20] and Hartshorn J and Makail J in their joint judgment at [38]-[39].
     
226. Locus standi or standing refers to “the legally recognisable right or capacity of a person to commence proceedings”: Namah v Pato (2014) SC1304 at [2]. A challenge to the competency of proceedings raises the question as to whether the court’s jurisdiction has been properly invoked. As Kearney DCJ stated in Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185, “An objection to competency is really an objection to the jurisdiction of the Court to entertain the point”.
     
227. To my mind, standing is a relevant matter in deciding the competency of proceedings, but it is not the only factor for consideration. For example, form and content of the proceedings often raise competency questions which may not necessarily be identified or raised in the hearing regarding standing. I thus have reservations about the decision in Application by O’Neill (supra) but notwithstanding that, the Court has determined the question of competency of the application before us and it is a judgement that this court has no power to review or revisit: Special Reference by Honourable Davis Steven (2020) SC2041.
     

THE FIRST MEETING OF THE PARLIAMENT

228. Discussion of the issue relating to the first meeting of the Parliament requires reference to and the interpretation and application of s 1(1) of the Organic Law on the Calling of Meetings of the Parliament, the definition of “the day fixed for the return of the writs for a general election” in Schedule 1.2 of the Constitution, and s 124 of the Constitution.
     
229. Section 1 states (with underlining added):
     

(1) The 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 on which the Parliament shall meet for the first time after a general election.

(2) The 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.

(3) The Head of State shall—

(a) as soon as practicable after fixing a time and date under Subsection (1); and

(b) not less than 14 days before that date; and

(c) where a state of emergency has been declared, not less than seven days before that date,

cause a notice specifying that time and date to be forwarded by telegram or pre-paid post to each member of the Parliament.

230. The meaning given to the expression “the day fixed for the return of the writs for a general election” is defined by Schedule 1.2 of the Constitution, and relevantly reads (with underlining added):
     

(a) in the case of a general election where there is no extension of the 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.

231. Section 124 of the Constitution states (with underlining added):
     

(1) The 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, and shall meet not less frequently than three times in each period of 12 months, and, in principle, for not less than nine weeks in each such period.

(2) An Organic Law shall make provision for the calling of meetings of the Parliament.

(3) Subject to Subsections (1) and (2), an Act of the Parliament or the Standing Orders of the Parliament may make provision in respect of the sittings of the Parliament.

232. One of the principles of constitutional interpretation as restated in SC Ref No 1 of 2008 Re 2006 Amendments to the Organic Law on Provincial Governments and Local-level Governments [2010] 1 PNGLR 233 is that where the word or expression used in the Constitution is clear and capable of being accorded its plain or ordinary meaning, then the Court should accord it that meaning and apply it to the circumstances of the case before it.
     
233. Section 1(1) of the Organic Law on the Calling of Meetings of the Parliament means what it reads, viz the notice of the date and time of the first meeting of the Parliament after the general election must be published in the National Gazette after the date fixed for the return of the writs. In the matter before us, that date was 5 August 2022. The gazettal notice was published before then in contravention of s 1(1).
     
234. Another principle of constitutional interpretation noted in SC Ref No 1 of 2008 (supra) is that the Court must engage in a construction exercise that will produce the correct meaning of that word or expression, and that the Court must give a fair and liberal meaning to the constitutional provision in question, to ensure that the legislature’s intention, spirit and purpose expressed in the provision is achieved: Constitution, sch 1.5(2).
     
235. In my view, when s 1(1) of the Organic Law on the Calling of Meetings of the Parliament is read together with the definition of “the day fixed for the return of the writs for a general election” in sch 1.2 of the Constitution, and s 124 of the Constitution, the intention is clear that if or when the majority of the writs are returned after a general election by the date fixed for the return of the writs:
     

• the members-elect shall be given notice by gazette of the first meeting of the Parliament;
• the notice shall be issued after the date fixed for the return of the writs; and
• the meeting shall be convened not more than seven days after the date fixed for the return of the writs.
  

236. I consider there to be two key factors in the calling of the first meeting of the Parliament after the general election:
     

• that the majority of the writs are returned; and
• that the members-elect are given adequate notice of the meeting.
  

237. These factors are not in controversy in the case now before this court.
     

CONCLUSION

238. I endorse the orders proposed by Cannings J.
     
239. BY THE COURT: The effect of our varying opinions is that, by majority, the Court makes the following order:
     

(1) The application to dismiss the application for being incompetent is refused.

(2) It is declared that the requirement of s 1(1) of the Organic Law on the Calling of Meetings of the Parliament that the notice in the National Gazette fixing the time and date of the first meeting of the Parliament after the 2022 general election be published after the date fixed for the return of the writs was not complied with.

(3) It is declared that noncompliance with s 1(1) of the Organic Law on the Calling of Meetings of the Parliament in respect of the 2022 general election was in the circumstances of this case inconsequential.

(4) The applicant’s application for a declaration that the meeting of the Parliament on 9 August 2022 was unconstitutional, is refused.

(5) It is declared that s 1(3) of the Organic Law on the Calling of Meetings of the Parliament is unconstitutional.

(6) The applicant’s application for a declaration that s 63 of the Organic Law on the Integrity of Political Parties and Candidates is unconstitutional, is refused.

(7) The applicant’s application for a declaration that the election of the Prime Minister at the meeting of the Parliament on 9 August 2022 was unconstitutional, is refused.

(8) All other relief sought by the applicant is refused.

(9) Subject to any specific costs orders made during the proceedings, the parties shall bear their own costs of the proceedings.

__________________________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant
Mel & Hennry Lawyers: Lawyers for the First Intervener
Steven & Associates Lawyers: Lawyers for the Second Intervener
Jema Lawyers: Lawyers for the Third Intervener
Kawat Lawyers: Lawyers for the Fourth Intervener
Kuman Lawyers: Lawyers for the Fifth Intervener
Kopunye Lawyers: Lawyers for the Sixth Intervener