It’s been a long drawn out saga since May last year and now that things are sitting in Courts waiting for answers, things seem a little calmer. But if any of the cases drag out any further and the elections come around then none of it may mean anything as the whole issue may just as easily be canned by the new government and forgotten about.
We may still get decisions for the sake of legal interpretations but that could be it and its all over. Which begs the question, why bother in the first place?
1 On 17 May 2011 during the May meeting of Parliament a motion was passed that leave of absence be granted to Sir Michael Somare for the duration of the meeting on the grounds of ill health. Sir Michael Somare was absent from Parliament during three consecutive meetings of parliament during the May to August 2011.
2 On 2 August 2011 Parliament passed a motion that the office of the Prime Minister was vacant and Peter O’Neill was elected to be Prime Minister on a vote of 70 to 24 members.
3 On 2 August 2011, the Governor General Sir Michael Ogio appointed Peter O’Neill to be Prime Minister, Belden Namah as Deputy Prime Minister and appointed 11 new Ministers and dismissed 28 of the 33 existing Members of Parliament from the Office of Minister. These appointments and dismissals were published in National Gazette no G205 on 3 August 2011.
4 By the decision of the Governor General on 2 August 2011 and publication of such decision in the National Gazette on 3 August 2011 Dr Allan Marat was appointed a Minister and Sir Arnold Amet was dismissed from being a Minister.
5 A Supreme Court Reference was filed in August 2011 by the East Sepik Provincial Executive seeking the Supreme Court’s opinion on whether the decisions by parliament were constitutional.
6 On 9 December 2011, Parliament rescinded its decision to grant a leave of absence to Sir Michael Somare for the May sittings of Parliament. This meant that in effect Sir Michael Somare was absent from 3 meetings of Parliament without leave and the Governor General declared a vacancy of the East Sepik Provincial seat in the National Parliament. This declaration was published in the National Gazette No G363 on 9 December 2011
7 On 12 December 2011, a Bill being the Prime Minister and National Executive Council (Amendment) Bill 2011 was passed through Parliament which made amendments to the Prime Minister and National Executive Council Act 2002, providing a time limit for an Acting Prime Minister to be in office. These amendments were made retrospective to 1 January 2011.
8 The Speaker of Parliament certified the Prime Minister and National Executive Council (Amendment) Act 2011 on 12 December 2011
9 Parliament then elected Peter O Neill as Prime Minister on 12 September 2011
10 On 12 December 2011 the Supreme Court found that the declaration on 2 August 2010 of the vacancy in the office of Prime Minister was unconstitutional – effective from 12 December 2011. (p66 Decision)
11 The Supreme Court found the election of Peter O’Neill as Prime Minister on 2 August 2011 consequently unconstitutional – effective from the 12 December 2011.
12 On 13 December 2011 Parliament received and noted the Opinion of the Supreme Court in SCR 3 of 2011
13 On 13 December 2011, following the Order by the Supreme Court to restore Sir Michael Somare as Prime Minister effective on 12 December 2011 and on the advice of the Acting State Solicitor, the Governor General dismissed 10 Ministers from the original Somare government. This was published in the National Gazette no G390 on the same day being 13 December 2011.
14 Also on 13 December 2011, Sir Michael Somare as Prime Minister determined Ministerial Responsibilities for his original Ministers which also included Sir Arnold Amet’s determination as Minister for Justice and Attorney General. This was despite the fact that the original Somare Ministers had not been re-appointed by the Governor General. These Members were given Ministerial portfolios by Sir Michael Somare but they were not actually appointed Ministers by the Governor General at that time. The portfolio determinations were also published in the National Gazette No G390 on the same day being 13 December 2011. Note _ National Gazette No G390 was wrongly numbered so in National Gazette No 372 – the mistake was corrected and G390 was renumbered to G371)
15 At no stage following the Supreme Court decision of 12 December 2011 was Sir Michael Somare re-appointed or sworn in as Prime Minister by the Governor General.
16 The Governor General despite the provisions of Section 142 (2) of the Constitution saying that the Governor General shall only appoint a Prime Minister in accordance with a decision of Parliament, refused to accept the decision of Parliament contrary to Section 142(2) of the Constitution and refused to swear in Peter O’Neill as Prime Minister.
17 The National Executive Council pursuant to Section 94(1) of the Constitution then on the advice of Parliament suspended the Governor General for failing to act in accordance with his obligations under the Constitution, particularly Section 142(2). This suspension was published in the National Gazette No G377
18 The Speaker of Parliament was then made Acting Governor General by operation of law being Section 95(2) of the Constitution.
19 On 14 December 2011, the Acting Governor General pursuant to Section 142(2) of the Constitution appointed Peter O’Neill as Prime Minister, acting in accordance with the decision of Parliament made on 12 December 2011. This appointment was published in the National Gazette No G376 on 14 December 2011.
20 Also on 14 December 2011, the Acting Governor General pursuant to Section 3(2) of the Prime Minister and National Executive Council Act 2002 appointed Belden Namah to be Deputy Prime Minister, acting on and in accordance with the advice of Prime Minister O’Neill. This appointment was published in the National Gazette No G376 on 14 December 2011.
21 Also on 14 December 2011, the Acting Governor General pursuant to Section 144(4)(b)(i) of the Constitution acting on and with the advice of the Prime Minister dismissed 20 members of Parliament from the Office of the Minister, including Sir Arnold Amet. These dismissals were published in the National Gazette No G376 on 14 December 2011.
22 Also on 14 December 2011, the Acting Governor General pursuant to Section 144(2) of the Constitution appointed 33 members of Parliament to the Office of Minister, including Dr Alan Marat. These appointments were published in National Gazette No G376 on 14 December 2011.
23 On 14 December 2011 the Prime Minister Peter O’Neill pursuant to Section 148 of the Constitution signed the determination of Ministerial responsibilities and made Dr Allan Marat Attorney General. This was published on 14 December 2011 in the National Gazette No G374.
24 On 19 December 2011, Sir Michael Ogio wrote to Parliament and informed them that he recognized Peter O’Neill as the Prime Minister as duly elected by Parliament and Peter O’Neill was duly sworn in as Prime Minister by the Acting Governor General. He also stated that he had received flawed legal advice from the First Legislative Counsel being Hudson Ramatlap and the State Solicitor by way of a letter from the Chief Secretary when he had refused to swear in Peter O’Neill as the elected Prime Minister on 13 December 2011.
25 Parliament lifted the suspension of the Governor General and Sir Michael Ogio was restored as Governor General on 20 December 2011.
26 On 21 December 2011, the Standing Orders were suspended and a Bill being the Prime Minister and National Executive Council (Amendment No.2) Bill 2011 was passed through Parliament which made further amendments to the Prime Minister and National Executive Council Act 2002, providing an age limit for a Prime Minister being 72 and further providing validation for the decisions and actions of the Prime Minister O’Neill’s government from 2 August 2011 .
27 The Speaker of Parliament certified the Prime Minister and National Executive Council (Amendment No.2) Act 2011 on 21 December 2011.
Numerous National Courts cases filed by those who had been appointed on advice from the Somare camp following decision of 12 December and whose appointments had been revoked on advice of the O’Neill government following 14 December
28 There were numerous National Court case filed in late December 2011 and January 2012
Yakasa’s case – OS958 of 2011
a) On 29 September the Governor General revoked the appointment of Anthony Wagambie as Police Commissioner and appointed Toami Kulunga as Acting Police Commissioner as published in National Gazette No G276 on 30 September 2011
b) On 28 November 2011, the Governor General revoked the appointment of Toami Kulunga as Acting Police Commissioner and then substantively appointed him as Police Commissioner on the same day as published in the National Gazette No G339 on 28 November 2011
c) On 13 December 2011, the Somare group advised the Governor General to revoke the substantive appointment of Toami Kulunga as Police Commissioner and appoint Fred Yakasa for the first time as Acting Police Commissioner. The Governor General did so as published in the National Gazette no G390 (now G371) on 13 December 2011.
d) On 15 December on Advice of the O’Neill NEC revoked the appointment of Fred Yakasa as Acting Police Commissioner and re-instated and appointed Toami Kulunga as substantive Police Commissioner as published in the National Gazette no G377 on 15 December 2011.
e) On 16 December 2011, Fred Yakasa filed an Originating Summons in the National Court challenging the decision of the Governor General to revoke his Acting appointment on the basis that the O’Neill NEC had provided the advice to the Governor general and not the Somare NEC and he sought to declare the subsequent appointment of Toami Kulunga as Police Commissioner invalid on the basis the Governor General made the appointment on the basis of advice from the O’Neill NEC.
f) Various applications were filed by parties and Her Honouy Justice Davani advised that this National Court case as well as others filed would not resolve the main issues and the constitutional questions raised should be in the Supreme Court which would in turn resolve all the National Court case. Based on this the Attorney General Dr Alan Marat filed a Supreme Court reference being this Reference SCR 1 of 2012 raising the constitutional questions in accordance with Her Honour’s suggestion.
g) On 25 January 2012, Her Honour Justice Davani delivered a decision on various applications which reserved 7 questions for the Supreme Court to determine as they were Constitutional questions arising in the National Court case which invoked the original jurisdiction of the Supreme Court.
h) Her Honour also held that the related cases should not proceed being Ramatlap, Osbourne, Yer and SCR1 of 2012 pending the determination of the questions in the reservation.
i) She directed that the reservation be listed before the Supreme Court listings Court on 16 February 2012 for directions on a way forward, along with this Reference.
a) On 4 December 2011 Gabriel Yer was appointed Secretary for Finance as published in the National Gazette that day. On 12 August 2011, the appointment of Gabriel Yer was revoked and Steven Gibson was made Acting Secretary for Finance as gazette in National Gazette No G225 on 15 August 2011.
b) On 13 December 2011 the Governor General revoked the appointment of Stephen Gibson as Acting Secretary for Finance and reinstated and appointed Gabriel Yer as Secretary for the Department of Finance. This was published in the National Gazette No G390 on 14 December 2011.
c) On 15 December the Acting Governor General revoked the appointment of Gabriel Yer as Secretary for Finance and reinstated Steven Gibson as Acting Secretary for Finance as published in the National gazette no G377 on 15 December 2011.
d) Gabriel Yer then filed an Originating Summons on 23 December 2011 challenging the revocation by the Acting Governor General on 15 December 2011 on the basis that the advice given to the Governor General was not from the legitimate authority of the NEC– being the NEC of the O’Neill/Namah Government – and asking the Court to recognize his appointment by the Governor General on the advice of the Somare NEC on 13 December.
e) Judge Davani has held that this matter should not proceed pending the determination of SCReservation 1 of 2012. Judge Davani was dealing with this matter
i. On 21 December 2011, the Acting Minister for Foreign Affairs in the O’Neill Cabinet cancelled the visa of Graeme Osbourne.
ii. Graeme Osbourne was deported from Papua New Guinea on 28 December 2011.
iii. Osbourne filed an Originating Summons seeking leave for judicial review of the decision of the Minister for Foreign Affairs to cancel Osbourne’s work permit on the basis that Jamie Maxtone Graham was not a lawfully appointed Minister in a lawfully appointed executive government in Papua New Guinea.
iv. It was directed by her Honour Justice Davani that this case should not proceed pending the case reservation in Yakasa’s case. Judge Manahu had been dealing with this matter
a) Hudson Ramatlap’s appointment as First Legislative Counsel was revoked on 18 December 2011 and Vela Konivaro was appointed the First Legislative Counsel.
b) Ramatlap challenged his termination in OS proceedings filed 23 December 2012, which he subsequently withdrew on 9 January, but then on 16 January 2012 he filed an application for Judicial Review of his termination. Leave was granted and interim orders made. An application to set aside those interim orders was made on 25 January 2012 and the decision was to be delivered today 3 February 2012, but the decision was not delivered as we are informed by the registry that the suspended Chief Justice had ordered that all files be returned to the registry and taken from the individual judges.
c) Judge Manahu had been dealing with this matter
29. Of the cases mentioned in the Orders made 2 February 2012
a) Judge Davani was dealing with Yakasa’s case
b) Judge Davani was dealing with Yer’s case
c) Judge Manahu was dealing with Osbourne’s case
d) Judge Manahu was dealing with Klapat’s case
e) Judge Manahu had been dealing with Ramatlap’s case
f) Judge Manahu had been dealing with SCR no 1 of 2012 Reference by Attorney General
g) The matter of SCTR 3 of 2011 was finished
h) SCOS 1 of 2012 had not been served and no date had been allocated.
30 The suspended Chief Justice was not dealing with any of the current case matters listed in the Orders prior to 2 February 2012 except for SCR3 of 2011 but that matter had concluded.
Suspension of Chief Justice
31 On 1 February 2012 the NEC met and determined to give advice to the Governor General that a tribunal be appointed to investigate into the conduct of the Chief Justice and to provide a report, that the Chief Justice should be suspended during the tribunal and compilation of the report and that the Deputy Chief Justice be appointed Acting Chief Justice in the interim.
32 The Tribunal is an investigative Tribunal – not a Judge and Jury – their job is to investigate into the allegations and put them to the CJ and then compile a Report to be given to NEC. It does not make any findings of guilt or penalty – it is to give a report on the investigation only. It is this way because it would be contrary to the doctrine of separation of powers for the NEC to investigate into the conduct of the CJ – instead that is done by a Tribunal of judicial peers. It is only at this point that the allegations are put to the CJ and he is given that chance to respond – his time for natural justice.
33 On 2 February 2012 the Governor General decided to appoint a Tribunal, suspend the Chief Justice and to appoint an Acting Chief Justice. This was published in the National Gazette on the morning of 2 February 2012 by 8.30am
Orders made by Supreme Court on 2 February 2012
34 Early on Thursday 2 February 2012, the Attorney General had filed an urgent application for restraint orders against Sir Michael Somare and other Members to restrain them from holding themselves out as the legitimate government. It had been notified that it was to be heard by Judge Manahu at 9.30am. At approximately 10.30am a handwritten unsigned piece of paper from the Supreme Court registry was given to Counsel stating that the application was to be heard on Tuesday 7 February by the same Full Court that had heard SCR 3 of 2011 and that Counsel was to serve the “representatives”. In SCR 1 of 2012, there were no other parties as there have been no applications for intervention moved. The only application for intervention was listed for mention on 16 February 2012. It was a confusing message.
35 At 1.30pm on the same day, counsel, including Warner Shand and Twivey Lawyers returned to the Court as there were two National Court matters on before Judge Manahu being Osbourne and Ramatlap. After Judge Manahu’s Court adjourned , at approximately 2.30pm, when Counsel was walking down the Court stairs they were both handed an Order which listed numerous court cases filed in The National and Supreme Courts in the headings including this Reference saying that all the parties and persons involved in the Court proceedings named as well as a long list of other persons were to attend at the Supreme Court on Tuesday 7 February 2012 at 9.30am for the ‘hearing of the applications”. We noted that in the list were included matters that had not even been served, including SCOS 1 of 2012. (Order 1)
36 Counsel for the Attorney General left the Court House and went straight to Morauta House to advise of the new Supreme Court Order made and then in turn were instructed to return to the Court House to deliver a letter to the Chief Justice and to the Deputy Chief Justice advising of the suspension of the Chief Justice and annexing a copy of the Gazettal Notice of the suspension.
37 On arrival at the Court house, Counsel went into the Registry with the letter and notices. Counsel spoke to the secretaries and the Registrar and finally to the Chief Justice who refused to accept the letter and said it should be taken away.
38 When Counsel came out of the Registry, at about 4pm , they were handed by Registry staff another new Supreme Court Order entitled “Amended Order”. On comparison with the earlier Order, it appeared that the Order was the same in all aspects to a previous Order given, except that Belden Namah’s name had been added to the long list of persons required to be present in Court on 7 February 2012. (Order 2)
39 Counsel left the Courthouse and then at approximately 5pm Counsel was faxed with another Order of the Supreme Court again made ex parte for the suspension of Chief Justice Injia decision or decisions by the NEC to be stayed pending the laying of contempt charges against persons named in the Order including the Prime Minister and the entire NEC. The Order was made by three judges of the Supreme Court being the suspended Chief Justice Injia himself, and Judges Kirriwom and Sakora. (Order 3)
40 The decision to suspend the Prime Minister was not made by the NEC but by the Governor General on advice from NEC and it was published in National Gazette no 35 of 2012.
41 This Supreme Court reference had been listed for directions on 16 February 2012 along with the Case reservation by Judge Davani . There are applications filed in that matter for directions, for a Stay on the National Court matters which raise similar Constitutional questions and for Arnold Amet to intervene. These applications were all listed for mention on 16 February 2012.
42. On 7 February a Supreme Court bench consisting of Salika DCJ, Sakora J and Kirrawom J mentioned all related matters that were in Order 2. All the parties were present along with 24 lawyers. The Court determined that the confusion needed to be resolved and took submissions on which of the 14 related matters should go first.
43. On 8 February 2012 the Supreme Court held SCR 1 of 2012 filed by Dr Alan Marat (Twivey Lawyers) and SCR2 of 2012 filed by parliament (Warner Shand) should proceed first, and all other 12 matters were stayed, including SCOS1 of 2012 which were the “enforcement/contempt” proceedings filed by Sir Michael Somare, Sir Arnold Amet and NA – which were proceedings designed to “enforce” the advisory opinion of the Supreme Court given on 12 December 2012. All of these actions have been stayed as the References filed by Twivey lawyers and Warner Shand Lawyers have been determined by the Full Supreme Court to go first as these raise squarely the issues – that is – who is the legitimate authority.
44 The 14 related actions were started (11 by Somare camp, 1 by Parliament (Reference), 1 by Attorney General (reference) and one by Tom Kulunga re bribery of a lawyer). One of the matters started by Yakasa (the Somare preferred Police Commissioner) has resulted in a reservation of Constitutional Matters (same as in my AG reference) for the Supreme Court to determine by Davani J
45 These “enforcement” proceedings charged the PM, DPM, Speaker, Deputy Speaker, AG, the entire NEC, Chief Secretary and Tiffany Twivey for contempt for being part of a “conspiracy” to stop the court orders of 12 December 2012. For her part her alleged legal advice and her actions in filing the Supreme Court Reference SCR1 of 2012 and defending National Court actions started by the Somare camp that have attracted the contempt allegations – which indeed is something which Judge Davani has done in any event by reserving a case for the Supreme Court – and by order of 25 January recommending that all the National Court proceedings not proceed until the SC matters are determined.
46 19 applications have now been filed by persons wishing to intervene and be heard on the references – these applications will be heard on 27 February 2012. A directions hearing will also be heard that day on the way forward.
47 The Evidence Act provides that the Courts shall take judicial notice of acts/orders/proclamations as printed in the government gazette.
48. For anyone to claim that there are two PMs or two AGs at the moment is nonsensical as the GG has appointed Peter O,Neill as PM on 14 December 2011 and this has been gazetted, along with the appointment of the O’Neill Ministers. They are the only ones holding office. The best Sir Michael Somare or Sir Arnold Amet can say is that they believe they have a CLAIM to be the PM or AG – but they are just not so at this stage.
49 There has never been two PMs or two AGHs and it is just mischievous and deceitful to say there have been.
50 On 6 March Chief Justice Sir Salamo Injia is arrested by police and charged with perverting the course of justice. Charge relates to a decision he made in 2009 relating to the estate of the late National and Supreme Court Judge, Justice Timothy Hinchliffe. Police allege that Sir Salamo and others had “conspired to pevert the course of justice by circumventing a national Court order issued by then National Court Justive Mark Sevua in 2009 who granted probate to the will of the late Hinchliffe to a Tomothy Moere Sari Junior’