Reference pursuant to Section 19 of the Constitution, In the Matter of Constitutional (Amendment) Law 2008; Reference by the Ombudsman Commission (2010) SC1027

• Jurisdiction: Papua New Guinea
• Judge: Waigani: Injia, CJ; Kirriwom J & Gavara-Nanu J
• Judgment Date: 17 May 2010
• Citation: (2010) SC1027
• Docket Number: SC REF NO. 01 OF 2010
• Court: Supreme Court
• Year: 2010
• Judgement Number: SC1027

Full Title: SC REF NO. 01 OF 2010; Reference pursuant to Section 19 of the Constitution, In the Matter of Constitutional (Amendment) Law 2008; Reference by the Ombudsman Commission (2010) SC1027

Supreme Court: Waigani: Injia, CJ; Kirriwom J & Gavara-Nanu J

Judgment Delivered: 17 May 2010

SC1027

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REF NO. 01 OF 2010

REFERENCE PURSUANT TO SECTION 19 OF THE CONSTITUTION, IN THE MATTER OF CONSTITUTIONAL (AMENDMENT) LAW 2008

REFERENCE BY THE OMBUDSMAN COMMISSION

Waigani: Injia, CJ; Kirriwom J & Gavara-Nanu J

2010: 14th & 17th May

CONSTITUTIONAL LAW - Practice and Procedure - Constitutional Reference - Interpretation and application of Constitutional Law - Amendment to the Constitution affecting powers and functions and of the Ombudsman Commission - Application for Interim injunctive relief - Application to restrain Speaker of Parliament from certifying Constitutional Amendments subject of the reference - Jurisdiction to grant interim relief - Exercise of discretion- Relevant considerations- Constitution, s 13, s 14 (4) & (5) , s 113 and s 114; Supreme Court Rules, O 3 Rule 2 (b) and Order 4 Rule 8 (e).

The Ombudsman Commission filed a Special Reference under Constitution, s 19 raising questions as to the interpretation and application of Constitutional (Amendment) Law 2008 which was enacted by Parliament in 2010. The bill for enactment of the amendment law was introduced in Parliament in 2008 and was passed by Parliament after two successful votes. The amendment law was pending certification by the Speaker of Parliament under Constitution, s 14 (4) and (5) in order for the amendment to become law and come into force. The Commission applied for interim injunctive relief under Supreme Court Rules, O 3 Rule 2 (b) and Order 4 Rule 8 (e) to restrain the Speaker of the Parliament from certifying the amendment law until the reference is heard and determined by the Supreme Court.

Held:

1. Constitution, s 19 (4) and Supreme Court Rules 1984, O 3 r 2 (b) give the Supreme Court jurisdiction to grant interim relief in a Reference brought under Constitution, s 19.

2. The discretion given by SCR, O 3 r 2 (b) is exercised on proper grounds and circumstances. Relevant consideration to be taken into account in exercising this discretion, are :

(1) The first and most fundamental consideration is the nature of the order sought. If the order sought were to be granted, it must be consistent with the grant of Constitutional power and exercise of those powers by designated persons or authorities under the Constitution;

(2) Seriousness of the case in terms of the questions in the Reference to be determined;

(3) Prejudice to be suffered by the referrer in the performance of its public functions including the public interest associated with performance of those functions;

(4) Balance of convenience; and

(5) Preservation of the status quo.

3. As a matter of good practice and given the importance and seriousness of the issues raised in the Reference, the application must be made before the full Court by motion on three clear days notice to potential interveners including the Attorney- General and the Speaker of the National Parliament.

4. The procedure for making alterations of the Constitution are prescribed by Constitution, Sections 13 and 14. Pursuant to s 13 and s 14 (4) and (5), certification of a Constitutional amendment is part and parcel of a single process. Certification must follow an amendment that has been made by Parliament under Subsection s 14 (1), (2) and (3). After the proposed law to amend the Constitution is formally introduced in the Parliament, debated, voted upon and passed by Parliament, certification by the Speaker must follow the law as a matter of formality and as a matter of course. That process is privileged and protected. The Court has no authority to interfere with this law-making process.

5. The application in the present matter having been made after the Constitution was amended under s 14 (1) – (3), it is dismissed.

Cases cited in the judgment:

Haiveta v Wingti (No 3) [1994] PNGLR 197

Isidore Kaseng v Rabbie Namaliu and the Independent State of Papua New Guinea (No.1) [1995] PNGLR 481

SCR No. 4 of 1980; re Petition of M T Somare [1981] PNGLR 265

James Eki Mopio v The Speaker of the National Parliament [1977] PNGLR 420

SCR No. 2 of 1982; re the Organic Law on National Elections (Amendment Act) No. 1) [1982] PNGLR 214

Sir Pato Karkarya v The National Parliament (2004) SC752

The Hon. Bill Skate and The Hon. Peter O’ Neill v Jeffrey Nape, Speaker of Parliament (2004) SC 754

The Ombudsman Commission, Ila Geno v The Speaker of National Parliament & Others ( 2003) SC 721

Counsel:

V Narokobi, for the Referrer

L Kandi, as amicus curiae

17th May, 2010

1. BY THE COURT: This is an application by the Ombudsman Commission (the Commission) for interim injunctive relief made under 0 3 (2) (b) of the Supreme Court Rules 1984 (SCR). The application is brought in a Special Reference filed by the Commission under s 19 of the Constitution seeking an opinion on the interpretation and application of provisions of Constitutional (Amendment) Law 2008 ( Amendment Law) enacted by the Parliament. The amendment law makes various alterations to the Constitution that relate to the Commission’s jurisdiction, powers and responsibilities. The reference does not raise any question in relation to the interpretation and application of corresponding amendments made to the Organic Law on Duties and Responsibilities of Leadership .

2. The Commission seeks an order in the following term:

“…the Speaker of the National Parliament, its employees, servants and or agents, until further orders, be restrained from certifying the passage of Constitutional (Amendment) Law 2008.”

3. The facts of the case are set out in the Reference and also in the affidavit of Mr Chronox Manek, Chief Ombudsman Commission. The facts are not an issue. We recite the relevant facts for purpose of determining the application before us.

4. On 9th October 2008, the Amendment Law was introduced in Parliament as a private member’s bill by the Hon. Moses Maladina, MP. The proposed Amendment law was gazetted on 22 October 2008. On 11th March 2009, Parliament voted 86 – 0 in favor of the amendments on the first vote on the bill. On 9th March 2010, Parliament voted 83 – 0 in favor of the amendment law. This was the second and final vote. The Speaker of Parliament is yet to certify the Amendment Law. Once certified, the Amendment Law will come into force.

5. Constitution, s 13 provides for alteration of the Constitution in the following terms:

“13. Alterations of the Constitution.

This Constitution may be altered only by law made by the Parliament that—

(a) is expressed to be a law to alter this Constitution; and

(b) is made and certified in accordance with Section 14 (making of alterations to the Constitution and Organic Laws).

6. Constitution, s 14 states:

14. Making of alterations to the Constitution and Organic Laws.

(1) Subject to Sections 12(3) (Organic Laws) and 15 (urgent alterations), a proposed law to alter this Constitution, or a proposed Organic Law, must be supported on a division in accordance with the Standing Orders of the Parliament by the prescribed majority of votes determined in accordance with Section 17 ("prescribed majority of votes") expressed on at least two occasions after opportunity for debate on the merits.

(2) Subject to Section 15 (urgent alterations), the opportunities for debate referred to in Subsection (1) must have been—

(a) during different meetings of the Parliament; and

(b) separated in time by at least two months,

and the proposed law must be published by the Speaker in full in the National Gazette, and circulated, in accordance with the Standing Orders of the Parliament, to all members of the Parliament not less than one month before it is formally introduced into the Parliament.

(3) Amendments to a proposed law to amend this Constitution or a proposed Organic Law shall not be moved unless they have been circulated to members of the Parliament before the end of the meeting of the Parliament at which the first opportunity for debate referred to in Subsection (1) occurs.

(4) Subject to Subsection (6), in his certificate given under Section 110 (certification as to making of laws), the Speaker must certify that the requirements of Subsections (1), (2) and (3) or Section 15 (urgent alterations), as the case may be, have been complied with.

(5) The certificate referred to in Subsection (4) shall state—

(a) the date on which each vote was taken; and

(b) in relation to each vote—

(i) the number of seats in the Parliament at the time; and

(ii) the respective numbers of members of the Parliament voting for and against the proposal, and where the requirements of Subsection (2) were waived under Section 15 (urgent alterations) for and against the motion for the waiver,

and is, in the absence of proof to the contrary, conclusive evidence of the matter so stated.

(6) Unless the Parliament decides otherwise in any particular case, Subsection (1) does not apply where the Speaker, after...