Posted By Staff Reporter
By Kramer Report Last Friday 27 March, the Supreme Court dismissed Opposition Leader Belden Namah’s Supreme Court Reference challenging the election of James Marape as Prime Minister on 30 May 2019 following the resignation of former Prime Minister Peter O’Neill. The Supreme Court upheld the objection to competency application to dismiss the case because Namah's lawyer filed the proceedings using the wrong form. An objection to competency application is a process where one party (plaintiff) files court proceedings against another party(s) who are referred to as defendant(s) or respondent(s). Once proceedings are filed and served on parties involved the defendant(s) lawyers will study the issues raised in the proceedings and consider whether the plaintiff followed the proper court processes (e.g. whether they used the correct form). If they identify any processes that weren't followed they may apply to the Court and object to it hearing the case on the basis the proceedings were incompetent – hence the term 'objection to competency application'. The court has strict processes and rules that must be followed before it will hear your case. These processes and rules are to prevent abuse and ensure fairness. In this case, Marape’s lawyers filed four grounds in their objection to competency against Namah’s case. Three of the other grounds were dismissed and one was upheld by the Court. Namah’s lawyer filed his proceedings under Section 18(1) of the Constitution. This provision or section states that the Supreme Court has original (first) jurisdiction (powers) as to any question relating to the interpretation or application of any provision of a Constitution. Namah’s lawyer mistakenly filed the proceedings as a Reference using the wrong form rather than an Application. Rules of the Court provide that proceedings filed under Section 18(1) of the Constitution must state it’s an Application, not a Reference. The Prime Minister’s lawyers noted this procedural error and filed an application for objection to competency asking the Court to dismiss the proceedings for abuse of process – failing to follow the proper process. What now? Namah may refile a fresh proceeding this time following the proper process by using the correct form. Does this mean if Namah re-files the case it would likely succeed? My view is it would fail. Why? On 23rd September 2019, Belden Namah filed a Supreme Court Reference challenging the election of Prime Minister Marape asking the Court interpret; Whether the decision by former Prime Minister to withdraw his nomination after nominations were closed breached Parliament Standing Orders and Constitutional law; Whether the decision of Speaker Job Pomat to accept the withdrawal of O’Neill’s nomination after Parliament moved a motion to close the nomination breached Parliament Standing Orders and Constitutional law; and Lastly, whether the decision of Parliament to conduct an election of only two nominations of Marape and Mekere Morauta breached Parliament Standing Orders and Constitutional law; Namah filed an affidavit in support of his Supreme Court Reference claiming that: 1) Parliament did not follow the due process provided under Section 142 of the Constitution – which provides for the office of the Prime Minister including his/her election; and 2) The process breached his constitutional rights under Section 50 of the Constitution (to participate and vote) by depriving his opposition and people of Papua New Guinea reasonable opportunity to take part in the election of the Prime Minister, to exercise his public function of seconding the nomination of a candidate for the office of Prime Minister by the then Opposition Leader Patrick Pruaitch. What I find amusing is the last paragraph of Namah's affidavit where he states: “I am advised and verily believe that consistent with general spirit behind framing of our Constitution, to ensure democratic government and to avoid the appearance and accusation of conspiracy unfairness and manipulation for personal benefit, the most important question of the appointment of Prime Minister should – have been conducted in accordance with the correct provisions of the Parliament Standing Orders and consistent with the following provisions (laws) of Constitution - namely sections 11, 32, 41, 50, 59, 108, 142, and 158(2)." On the face of the facts provided by Namah one may believe he has a strong case. Before we discuss what Namah did not disclose in affidavit let’s consider the legal issues. Namah is asking the Court to declare the election of Prime Minister James Marape, that was conducted by Parliament, unconstitutional, unlawful and invalid. Does the Supreme Court have jurisdiction (powers) to overturn a decision of Parliament? Short answer is, Yes – where the decision is inconsistent or in breach with a Constitutional law. Section 134 of the Constitution (Proceedings Non-Justifiable) states that except as is specifically provided by a Constitutional Law, the question, whether the procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable. Non-justiciable in layman terms means - not able to be decided by a court of justice. So the Constitution states the question whether or not a procedure(s) provided for Parliament have been complied with shall not be challenged in any court unless the procedure is specifically provided for by a Constitution law. Namah is claiming that Parliament did not follow due process breaching Parliament Standing Orders as well as Section 50 and Section 142 of the Constitution. What is the process for electing a Prime Minister? Section 142 of the Constitution provides for the office of the Prime Minister including provisions on his appointment, resignation and or removal from office. The provision states that the Prime Minister shall be appointed at the first meeting of Parliament after elections and otherwise from time to time as the occasion for the appointment of a Prime Minister arises, by the Head of State, acting in accordance with a decision of the Parliament. Section 142(2) goes on to state if Parliament is in session when a Prime Minister is to be appointed, the question of the appointment shall be the first matter for consideration, after any formal business on the next sitting day. In this case the occasion of the appointment of Prime Minister arose after the former Prime Minister resigned and following the announcement of his resignation. The next sitting Parliament convened to elect a new Prime Minister, acting in accordance with decision of Parliament. It appears that the election of Prime Minister Marape did not breach any provisions of Section 142 of the Constitution. Namah further contends that the process breached his constitutional rights under section 50 of Constitution insofar as 1) depriving his, opposition and people of PNG reasonable opportunity to take part in the election of the Prime Minister. 2) exercise his public function of seconding the nomination of a candidate for the office of Prime Minister by the then Opposition Leader Patrick Pruaitch. Section 50 of the Constitution provides that every citizen who is of full capacity and has reached voting age, has the right, and shall be given a reasonable opportunity to take part in conduct of public affairs, vote for and or be elected to public office, to hold public office and exercise public functions. Namah is arguing that having being elected to public office he was denied the right to exercise his public functions as Member of Parliament to vote for and participate in the election of the Prime Minister. Did Namah participate in the election of Prime Minister? Yes. Was he deprived the right to second the nomination of a candidate for the office of the Prime Minister by then Pruaitch? No. Namah’s problem was that the person who he seconded, in this case Peter O’Neill, asked the Speaker of Parliament to withdraw his nomination. Was Namah denied the right to vote? No. While Namah may argue he was denied the right to vote for the candidate he seconded – the fact is he never intended to vote for O’Neill. On 30th May 2019, straight after the Parliament Session to elect James Marape as Prime Minister, the Opposition held a media conference at Parliament B1 Conference Room, where Pruaitch, as leader of the Opposition, alongside Namah and all other Members of the Opposition congratulated Marape on his election and publicly announced that the Opposition were satisfied with the election of James Marape. “The nomination of O’Neill was a deliberate move and planned tactic to expose him (O’Neill) and also vote for James Marape as this was what was agreed in the Laguna Camp,” Pruaitch said. (video recording) Pruaitch and I both filed affidavits to testify to this fact. However Namah’s case was dismissed before our evidence was heard. The last point of contention is Namah’s claim is Parliament Standing Orders were breached. Standing orders provide for the procedures of how Parliament conducts its business (meetings) when Parliament is in session. Section 114 of the Constitution provides for voting in the Parliament. It states 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. It also provides that the Standing Orders of the Parliament shall make provision for the manner in which a vote is to be taken and recorded. So the question is: Did Parliament breach standing orders in the election of the Prime Minister? Order 7B of Standing orders states after a general election, where there is vacancy in the office of the Prime Minister at any other time the Prime Minister shall be elected by motion duly moved and seconded without notice in accordance with this Section. It goes on to state the Speaker shall call for and accept nominations, duly moved and seconded. In this case the Speaker Job Pomat called for nominations. Governor of Enga Grand Chief Sir Peter Ipatas nominated Member for Pori-Tari Open Electorate James Marape. The nomination was seconded by Governor for Manus Charlie Benjamin. Marape accepted the nomination. Second nomination was moved by Patrick Pruaitch nominating Member for Ialibu-Pangia Peter O’Neill. It was seconded by Belden Namah, O’Neill accepted the Nomination. Third nomination was moved by the Member for Rabaul Open Electorate, Allan Marat, nominating the Member for Moresby North-West Mekere Moratua. It was seconded by Member for North Fly Electorate James Donald. Morauta accepted the nomination. Nominations were closed. However, O’Neill understood the situation after the Opposition nominated Sir Mekere Morata and withdrew his nomination after nominations had closed. Evidence of this fact is that when O’Neill announced to the Speaker he wished to withdraw his nomination he said he thought Opposition did not have a candidate. There are no provisions in the Standing Orders or the Constitution that provide for the procedure, where a nominee may withdraw his/her candidacy after nominations are closed. However Order 284 of Standing Orders of Parliament provides for circumstances where there are no procedures. It states that, “in any matter not provided for in these standing orders, Mr. Speaker shall decide.” With no procedure for withdrawing nominations after they are closed, the Speaker decided to accept O’Neill’s request to withdraw his nomination and announced to Parliament there would be just two nominations. Voting was conducted and Marape became the Prime Minister, by polling an overwhelming majority 101 votes to Mekere’s 8 votes - Namah voting for Mekere which was always the plan. Namah may decide to file fresh proceedings however his problem will be trying to get past standing when evidence is submitted to show the entire proceeding is not genuine, that has an improper motive and has been funded by a thirt party for K300,000 (copy of cheque to be provided). He will also have to explain how his rights were deprived and exactly what Constitutional law was breached to invoke the court's jurisdiction to challenge the decision of Parliament. Prime Minister and Marape Government legal team leaving the Wagani Court House after Supreme Court upheld their application and dismissed Namah's case. Next : PNG PM Marape Issues Stern Warning To Complacent Officials Note: Let Your Views be heard : Send all your Political Commentaries to us through our email : pngfacts@gmail.com Share this Comments are closed.
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