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Reference by the Ombudsman Commission of Papua New Guinea v O'Neill [2017] PGSC 2; SC1565 (3 March 2017)

SC1565

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]


SC REF NO. 2 OF 2017


REFERENCE UNDER S 19 OF THE CONSTITUTION

Re PROPOSED LAW TO AMENDMENT SECTION 103(2) OF THE CONSTITUTION AND SECTIONS 87 & 2O9 OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

REFERENCE BY THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA

Referor

AND:

THE HON PETER O'NEILL,

PRIME MINISTER OF PAPUA NEW GUINEA

Intervenor


Waigani: Injia CJ, Salika DCJ & Makail J
2017: 27th February & 3rd March


CONSTITUTIONAL LAW- Practice & Procedure- Application for Interim Relief Pending Determination of Reference- Interim Orders to Prevent Parliament from Conducting Proceedings on Third and Final Reading on Bills to Amend Constitutional Laws - Jurisdiction - Court has Jurisdiction to Intervene - Exercise of Discretion- Application Refused -Constitution, s 19(2), (4)& (5) & Supreme Court Rules 2012, Order 3 r 2


Counsel:


V. Narokobi, for the Referor/Applicant
T. Nonggor, for the Intervenor/Respondent


3rd March, 2017


1. BY THE COURT: This is a contested application for interim orders in a Constitutional Reference, seeking orders to prevent Parliament from conducting further debate and vote on two (2) Bills for Constitutional amendments, pending determination of the Constitutional Reference. The application is made by the Ombudsman Commission (Referor) and is made under Constitution s 19(4) and Supreme Court Rules 2012, Order 3 r 2. In the Reference, the Referor is seeking an opinion of this Court on the Constitutional validity of two proposed laws in the form of bills to amend s 103(2) of the Constitution and s 87 and s 209 of the Organic Law on National and Local Level Government Elections (OLNLLGE). The bills have gone past two of three readings required to pass the Constitutional amendments and are awaiting the third and final reading which will take place in the last sitting of the Parliament for this term of Parliament which is scheduled for this month.


2. The application was served on potential interested persons identified by the Court at the directions hearing, namely the Attorney General, the Speaker of the National Parliament and the Constitutional and Law Reform Commission. The Attorney General and the Speaker did not appear at the hearing. The Constitutional and Law Reform Commission appeared at the hearing but took no position on the application. The Prime Minister (Intervenor) appeared at the hearing and made an application to intervene in the Reference and also to be heard on the application. The Referor did not oppose the applications and we granted those applications.


3. The Referor relied on four affidavits namely, affidavit of Ombudsman Richard Pagen filed on 8 March 2017, affidavit of Ombudsman Michael Dick filed on 14 February 2017, and two affidavits of Virgil Narokobi filed on 23 February 2017 and 27 February 2017 respectively. The First Intervenor relied on the affidavit of Prime Minister Peter O’Neill filed on 15 March 2017. None of these affidavits contain any material from citizens affected by the proposed laws.


4. There is no question on the procedural jurisdiction of this Court to entertain this application that is brought under Constitution s 19 (4) and Supreme Court Rules, Order 3 rule 2: SC Ref No. 1 of 2010. Ref by the Ombudsman Commission (2010) SC1027.


5. In SC Ref No. 1 of 2010 Ref by the Ombudsman Commission (2010) SC1027, this Court spelt out the conditions to be satisfied by an applicant for interim relief made in a Constitutional Reference, as follows:


(1) The nature of the interim orders sought must be such that if the orders were 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 issues raised in the Reference to be tried.
(3) Prejudice to be suffered by the Referor in the performance of its public functions including the public interest associated with the performance of those functions.
(4) Balance of convenience.
(5) Preservation of the status quo.

6. Counsel for the parties made their arguments along these conditions. We deal with those arguments in the context of dealing with the important issues argued before us.


7. Amongst the five conditions mentioned above, the seriousness of the Constitutional questions in the Reference for trial is an important consideration. Issues arising from those Constitutional questions may involve threshold issues going to jurisdiction of the Court to assume jurisdiction on the issues raised in the Reference. This Court should first remind itself, and we do, that in determining the issues in the interlocutory application for interim relief, this Court is not determining the merits of the issues in the Reference. This Court will have to divorce itself from a detailed discussion and consideration of the merits of those issues in the Reference and confine itself to perusing the material placed before it and deciding whether some serious issues for judicial consideration is raised in the questions posed in the Reference.


8. The parties accept, and correctly so, that a bill to amend the Constitutional Laws placed before Parliament and is the subject of further debate and vote is a “proposed law” within the meaning of that term in s19 of the Constitution. Also see Constitution, s 19(5) for definition of “proposed law”.


9. The first issue before us is whether the nature of the order sought by the Referor is consistent with the Referor's Constitutional power and functions to bring this Constitutional Reference. We have no difficulty in finding in favour of the Referor on this issue. The Referor is an authority that is authorised to bring this Reference under s 19 of the Constitution and that authority ordinarily includes an entitlement to seek interlocutory relief in aid of the substantive relief sought in the Reference. The procedure for interim relief is provided under s 19 (4) of the Constitution and Supreme Court Rules 2012, Order 3 rule 2.


10. The second issue is a threshold one going to this Court's jurisdiction to grant interim relief. The issue is whether this Court has the jurisdiction to intervene and issue orders preventing the Parliament from conducting debate and vote on Constitutional amendment bills that are awaiting their third and final reading for debate and vote. The Referor argues that it is within this Court's jurisdiction to intervene in the law-making process in Parliament to ensure that the Constitutional procedural requirements for law-making are adhered to by Parliament. The Referor refers us to a passage from this Court's decision in SC Ref No. 1 of 2010. Ref by the Ombudsman Commission (2010) SC1027 which states that the Court should not intervene and interfere at any stage of the Parliamentary proceedings in respect of the performance of its law-making function because Constitution s115 and s 134 grants complete protection and privilege to those proceedings. The Referor urges us to deviate from this principle and adopt a different approach and refers us to passages from the judgments their honours Justice Hinchliffe and Justice Andrew J in In the Matter of Constitutional Validity of Amendment (Provincial Governments and Local-Level Government) [1995] PNGLR 481. Their honours held that this Court should intervene at any stage of the Parliamentary proceedings because it has a duty to ensure that the Constitutional prescription for amending Constitutional Laws are adhered to by Parliament.


11. The Intervenor argues that s 115 of the Constitution grants complete protection and privilege over the proceedings for debate and vote of a proposed law in Parliament and the Court lacks jurisdiction to intervene and interfere in that Parliamentary process by way of interim restraining orders. Although it is open for a proposed law to be challenged in Court and interim orders granted before the bill for Constitutional amendment goes before Parliament and after the bill is enacted into law, it is not open to challenge and for the court to grant interim relief over a proposed law that is before Parliament and going through debate and vote. To support this submission, the Intervenor heavily relies on passages from the Supreme Court's decisions in SC Ref No. 1 of 2010. Ref by the Ombudsman Commission (2010) SC1027 and Special Reference by the Fly River Provincial Government; re Organic Law on Integrity of Political Parties and Candidates [2010] SC 1057. The Intervenor submits the Referor is asking the Supreme Court to do exactly what it asked the Court to do in 2010 in SC Ref No. 1 of 2010. Ref by the Ombudsman Commission (2010) SC1027 and the Court should decline the request as it did in 2010.


12. It is our preliminary view that on the face of the express provisions found in s 19 (2) and s 19(5) of the Constitution which authorises this Court to deal with and determine any Constitutional questions relating to the interpretation and application of Constitutional Law provision, this Court is vested the jurisdiction to deal with and determine any Constitutional questions concerning any aspect of the law-making process in Parliament. However we also say that the question whether the Court should intervene by way of interim restraining orders in the law-making process that is in progress on the floor or Chamber of Parliament is a difficult question that has not been fully and conclusively considered and determined by the Supreme Court. The statements made in SC Ref No. 1 of 2010. Ref by the Ombudsman Commission (2010) SC1027 were made in the context of an application for interim relief made after the Constitutional Law in question had gone past the three readings and was awaiting certification by the Speaker. The statement of principle made by this Court in that case should be, at its highest, confined to the facts of that case and understood to be a preliminary position taken by the Court for purpose of determining the interlocutory application before it. In Special Reference by the Fly River Provincial Government; re Organic Law on Integrity of Political Parties and Candidates [2010] SC 1057, the statements referred to were made in the context of issues in that Reference that dealt with Constitutional Laws that had been enacted into law and the question of interim relief did not arise in that case.


13. For purposes of the present application, we are of the preliminary view that this Court can intervene at this stage of the Parliamentary proceedings because this Court has the jurisdiction to do so. We are persuaded by the Referor's submissions on this point.


14. The third issue relates to the seriousness of the issues in the Reference to be tried. There are two of three significant amendments made to the Constitutional Laws that are in question in the Reference. The first is a proposed amendment to s103(2) of the Constitution. The amendment seeks to repeal the nomination fee prescribed for intending candidates for General Elections set at K1,000 and to be replaced by K10,000. Section 87 of OLNLLGE which imposes the same fee is also proposed to be replaced with K10,000.


15. The Referor submits the proposed law imposes an exorbitant or excessive fee that ordinary citizens cannot afford and that restricts their right to stand for elective office given by s50 of the Constitution. Prior to 1982, the nomination fee prescribed by s 87 of OLNLLGE was K100. In 1982, Parliament amended s87 of the OLNLLGE by increasing the fee to K1,000. A successful Court challenge to the amendment resulted in the invalidation of the amendment: SCR No 2 of 1982: Re Organic Law [1982] PNGLR 214. In 1992, Parliament amended s 103 (2) of the Constitution and s 87 of the OLNLLGE and increased the nomination fee to K1,000. A Court challenge to that amendment failed: SCR No. 1 of 1992: Re Constitutional Amendment No 15 Elections and Organic Law on National Elections (Amendment No 1) Law 1991 [1992] PNGLR 73. In 2017, some 24 years on, the proposal is now to increase the nomination fee from K1,000 to K10,000 . The Referor argues that the proposed increase marks a quantum leap and therefore unreasonable. The Referor does not provide any evidence or material to support this argument, except to say the nomination fees are much higher than those prescribed in developed jurisdictions like Australia, New Zealand, UK and Canada. The Intervenor argues that the Referor has failed to provide any material to support the submission and it should be rejected.


16. We are satisfied that a serious issue has been demonstrated by the Referor that the increase of nomination fee on its face value marks a quantum leap and an ordinary citizen may have difficulty in affording that fee. Although the Referor has not provided any material from those citizens affected by the proposed law, the increase by a substantial amount does raise serious questions to be tried on this point.


17. The second amendment under challenge is the proposed amendment to s209 of OLNLLGE. The proposed law will repeal the security for costs deposit in an election petition in the sum of K5,000 and increase it to K20,000.


18. The Referor argues that the increase in the security for cost is also a substantial increase and a quantum leap which ordinary citizens cannot afford. The Intervenor argues that the argument is not supported by any material from those affected by the proposed law and it should be rejected.


19. We are satisfied that a serious issue has been demonstrated by the Referor that the security for costs deposit is excessive and could not be afforded by an ordinary citizen. Although the Referor has not provided any material from those citizens affected by the proposed law, the increase by a substantial amount does raise serious questions to be tried on this point.


20. The third proposed amendment, which is not part of the Reference, is an amendment to s 208(e) of the OLNLLGE which will limit the number of Court registries in which an election petition is filed to the four regional National Court (Waigani, Lae, Kokopo and Mt Hagen). At present, the rules of Court allow Election Petitions to be filed in any National Court or the District Court registry if there is no National Court registry, throughout the country. A challenge to this proposed law is not part of the Referor's case in the Reference. It baffles us as to why that proposed law has been omitted in the Reference.


21. The fourth issue is whether the Referor stands to suffer prejudice to its claims if the relief were denied. We accept arguments of the Intervenor that the Referor does not stand to suffer any prejudice. Firstly, the law-making process before Parliament must continue to its logical conclusion by requirement of law. Secondly, the Constitutional amendment bill may not pass the third reading and may not become law. Thirdly, if the proposed law successfully passes the third reading and the amendments become law, there is still opportunity for the Referor to argue the substantive Reference and obtain an expedited hearing and decision from the Court before the Writs for the coming General Elections are issued on 20 April 2017. Fourthly, the Referor does not of itself stand to suffer any prejudice to its claim because it will still have that opportunity to challenge that law.


22. The fifth issue is whether the balance of convenience and the preservation of the status quo warrants the grant of stay of the balance of Parliamentary proceedings on the two proposed Constitutional Amendments. We are satisfied that the balance of convenience does not favour the grant of stay of the Parliamentary proceedings. A grant of stay will disrupt the Parliamentary proceedings on the proposed laws from taking its course and see to it its logical conclusion. We would, for now, go along with the statements of principles in the two cases relied upon by the Intervenor and hold that, having formed the view that the Court has the jurisdiction to intervene at any stage of the Parliamentary proceedings on the proposed laws, in the exercise of our discretion, the balance of convenience and maintenance of the status quo favour the refusal of the interim relief. We are of the view that the proposed laws that are awaiting the third and final reading, debate and vote should proceed unimpeded by interim injunctive orders and allowed to reach their logical conclusion.


23. In summary, notwithstanding our finding in favour of the Referor that it has established that this Court has the jurisdiction to intrevene, and that it has demonstrated that there are serious issues to be tried on the questions in the Reference that the proposed amendments to s 103 (2) of the Constitution and s87 and s209 of the OLNLLGE, our findings in favour of the Intervenor on the other factors weigh heavily in tilting the balance in favour of refusing the application. We are not satisfied that this Court should intervene and halt the Parliamentary proceedings that are being conducted on the proposed Constitutional Laws by way of an interim order. The application is therefore refused.
_____________________________________________________
Virgil Narokobi: Lawyer for the Referor

Twivey Lawyers: Lawyer for the First Intervenor


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