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
• Citation: (2010) SC1027
• Date: 17 May 2010
• Docket Number: SC REF NO. 01 OF 2010
• Court: Supreme Court
• Year: 2010

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

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, s13, s14 (4) & s14 (5), s113 and s114; Supreme Court Rules, O3 r2 (b) and O4 r8 (e).

The Ombudsman Commission filed a Special Reference under Constitution, s19 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, s14 (4) and s14 (5) in order for the amendment to become law and come into force. The Commission applied for interim injunctive relief under Supreme Court Rules, O3 r2 (b) and O4 r8 (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, s19 (4) and Supreme Court Rules 1984, O3 r2 (b) give the Supreme Court jurisdiction to grant interim relief in a Reference brought under Constitution, s19.

2. The discretion given by SCR, O3 r2 (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, s13 and s14. Pursuant to s13 and s14 (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 s14 (1), s14 (2) and s14 (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 s14 (1)—(3), it is dismissed.

Cases cited in the judgment:

Haiveta v Wingti (No 3) [1994] PNGLR 197; Isidore Kaseng v Rabbie Namaliu (No 1) [1995] PNGLR 481 Haiveta v Wingti (No 3) [1994] PNGLR 197; Re Petition of MT Somare [1981] PNGLR 265; James Eki Mopio v Speaker of the National Parliament [1977] PNGLR 420; Re the Organic Law on National Elections (Amendment) Act 1981 (No 1) [1982] PNGLR 214; Re Election of Governor–General (No 3) (2004) SC752; Bill Skate and Peter O'Neil v Jeffrey Nape, Speaker of Parliament (2004) SC754; Re Election of Governor–General (No 1) (2003) SC721

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 s19 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, s13 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...