SC1178

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 05 OF 2012

REFERENCE PURSUANT TO CONSTITUTION SECTION 19
MOROBE PROVINCIAL EXECUTIVE

AND
IN THE MATTER OF THE JUDICIAL CONDUCT ACT 2012
SPECIAL REFERENCE

Waigani: Mogish J, Manuhu, J & Sawong, J
2012: 10th & 11th April,

CONSTITIONAL LAW – Practice and procedure – Constitutional Reference – Jurisdiction to grant interim relief – Parliamentary privileges – Relevant considerations in grant of interim relief

Cases Cited

Constitutional Reference No 3 of 1978; In the matter of s11(3) of the Inter–Group Fighting Act 1977 [1978] PNGLR 421, SCR No. 1 of 2000; Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council (2002) SC693, SCR No 1 of 1986; Re Vagrancy Act (Ch268) [1988] PNGLR 1, Constitutional Reference No 2 of 1978; Re Corrective Institutions Act 1957 [1978] PNGLR 404, SCR No 2 of 2004; Special Reference Pursuant to Constitution Section 19 by the Morobe Provincial Executive Re Enhanced Co-operation Between Papua New Guinea and Australia Act 2004 (2005) SC785.

Counsel:
R. Pato with M. Kambao, for the Referrer. L. Henao, for the Attorney General and the State. M. Wilson with T. Yamarhai, for Hon. Peter O'Neill, Prime Minister and National Executive Council. P. Donigi, for 63 Members of Parliament. T. Twivey, for the Hon. Jeffery Nape, MP, Speaker of National Parliament. 

11th April, 2012

1.	BY THE COURT: This is an application made pursuant section 155 (4) of the Constitution and or Order 3 Rule 2 (b) of the Supreme Court Rules 1984 (the Rules) for the following interim orders:

(a) 	that pending final determination of the Reference, the decision and or motion of National Parliament made or passed on 4th April 2012 to refer the Chief Justice Sir Salamo Injia and Justice Nicholas Kirriwom be stayed;

(b) 	any person and or authority including those specified in section 5(2) of the Judicial Conduct Act 2012 (the Act) be stayed from entertaining or otherwise taking any step or action in pursuance of the said decision and or motion of the National Parliament made or passed on 4th April 2012 to refer the Chief Justice and Justice Kirriwom;

(c) 	a Tribunal if one has been appointed pursuant to section 5(2) of the Act be stayed from taking all or any step to investigate any matter under section 5 (1) in respect of the referral of the Chief Justice and Justice Kirriwom by Parliament; and

(d) 	all or any of steps taken including a decision by the National Executive Council in respect of the referral of the Chief Justice be stayed.

2.	The application seeks a further order, for avoidance of doubt, that the Chief Justice and Justice Kirriwom shall hear and continue to hear legal proceedings and exercise all their powers as Chief Justice and Judge respectively and all or any of their judgment or order shall continue to have full effect and be in force.

3.	The substantive Reference, in summary, raises questions for the Supreme Court to determine, pursuant to section 19 of the Constitution, the validity and constitutionality of the Act which was passed by Parliament on 21st March 2012 and certified into law by the Speaker on 30th March 2012. The Act, under section 5 (2) gives Parliament the authority by way of a motion to refer a Judge to the Head of State to appoint a Tribunal to investigate a Judge for breach of the Act 

4.	We have heard and considered submissions from all counsel. The relevant issues arising from the submissions are:

(a)	Whether this Court has the power to grant interim stay in a reference under section 19 of the Constitution?

(b)	If this Court has such power to grant interim stay, whether the Court should grant the stay orders sought? 

5.	At the outset, however, there are certain preliminary important matters for us to mention. We are firstly indebted to Mr. Henao for reminding us that the two persons affected by the application are Chief Justice Sir Salamo Injia and Justice Nicholas Kirriwom, who are our judicial colleagues. It was impressed upon us, quite appropriately, that we should divorce our minds from the Chief Justice and Justice Kirriwom and to determine the application on its merits. We entirely agree with counsel. We are also aware that we are exposed to the provisions of the Act and we risk being referred in the same manner as the Chief Justice and Justice Kirriwom should Parliament consider us to be bias.

6.	We remind ourselves, however, that the Reference and this application has implications that renders insignificant the risk upon ourselves and the interest of our judicial colleagues. The Constitution under section 158 vests the judicial authority of the People in the National Judicial System. The Constitution gives us as members of the Supreme Court the mandate to interpret the Constitution and laws of this country. The Constitution also directs us, in interpreting the law, to give paramount consideration to the dispensation of justice. We took our respective oaths of office to uphold the Constitution and the laws of the Independent State of Papua New Guinea and do right to all manner of people in accordance therewith, without fear, favour, affection or ill-will. We remain committed to our oaths and the dictates of the Constitution.

7.	We now turn to the issues raised.

Whether this Court has the power to grant interim stay in a reference under section 19 (1) of the Constitution?

8.	We note and accept the submission that section 19 of the Constitution does not give the Supreme Court the power to grant interim relief. We also note and accept the submission that interim relief in a Reference is rare.

9.	However, the application is made pursuant to section 155 (4) of the Constitution and Order 3 Rule 2 (b) of the Rules. Section 155 (4) gives this Court the inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case. Order 3 Rule 2 (b) provides that a Judge of the Supreme Court, in any proceeding which relate to a matter or question within its original jurisdiction, may grant an "interim order to prevent prejudice to the claims of the parties." We sit as a full court pursuant to the Supreme Court's ruling in the Reference by the Ombudsman Commission (2010) SC 1027 per Injia, CJ, Kirriwom, J and Gavara-Nanu, J. where it was held that this Court's discretion to grant interim relief is available "on proper grounds and circumstances".

10.	In the circumstances, we are satisfied that this application is properly before us. This Court has the power to grant interim stay in a Reference under section 19 (1).

Whether the Court should grant the stay orders sought? 

11.	Considerations for grant of interim stay are stated in the ruling in the Reference by the Ombudsman Commission (SC1027). They 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.

Nature of orders sought

12.	Counsel for the referrer submitted that the orders sought is to stay the exercise of powers and the making of decisions or taking of steps by persons and entities that has the power (albeit) unconstitutionally to exercise, make decisions and or exercise those powers. He submitted that the evidence clearly shows Parliament has referred the Chief Justice and Justice Kirriwom to the Head of State for appointment of a tribunal to investigate them. The exercise of the powers or decisions and actions by those authorized under the provisions of the Act has happened and will happen. The orders are not sought in a vacuum as happened in the Reference by the Ombudsman Commission (SC 1027) when the validity of the constitutional amendments it sought to challenge remain to be certified into law.

13.	Opposing counsels argued parliamentary privileges. In addition Mr. Henao submitted that the orders sought by the referrer do not affect its powers, functions and responsibilities.

14.	It is important to note that the Act has been passed and certified into law. It is now in full force and effect. The Act is no longer before Parliament. The referral of a Judge is the process under the Act that is the subject of this Reference and this application.

15.	It is also necessary to lay out the process of referral of a Judge under the Act. Parliament by way of a motion may refer a Judge to the Head of State to appoint a Tribunal to investigate a breach and then provide a report to Parliament or may refer a matter to another authority for appropriate course of action. The hearing of the application proceeded on the basis that the Chief Justice and Justice Kirriwom have been referred, which is confirmed in Mr. Wilson's submission in paragraph C (15) and the affidavit of Kable Olewale sworn and filed on 10th April 2012.

16.	In the circumstances, we are of the view that Parliament is functus officio. Parliamentary privilege is not an issue. Following the passing, certification and coming into operation of the Act, this Court is at liberty to consider any challenge to constitutional validity of the Act and any interim relief in the interest of justice.

Seriousness of the questions

17.	Counsel for the referrer has, in his submissions, demonstrated numerous instances of constitutional issues which raise serious doubts on the validity of the Act. For instance, the Act has not been made in accordance with section 38 (2) of the Constitution in that it fails to specify the qualified rights it seeks to regulate or restrict such as those in sections 38 (1), 46, 48 and 55 of the Constitution. Another example that raises serious questions on the validity of the Act is that the provisions of the Act appears to be in direct conflict with section 223 (2) and (3) of the Constitution. Subsection (3), in particular states: 

"A constitutional office-holder may not be suspended, dismissed or removed from office, during his term of office, except in accordance with a Constitutional Law." 

18.	A Judge is a constitutional office-holder. See section 221 of the Constitution. Constitutional Law means the Constitution, an Organic Law and amendments to the Constitution or Organic Law. See Schedule 1.2 of the Constitution. The Act in question is not a Constitutional Law. 

19.	These and other constitutional provisions clearly raise serious constitutional issues about the constitutional validity of the provisions of the Act.

Prejudice to the referrer

20.	There is no direct prejudice to the referrer. However, we adopt the remarks of the Supreme Court in the Reference by the Ombudsman Commission SC 1027, as follows:

"22.	In a special reference under s 19 however, there are decisions of this court which suggest that there are no parties in the Reference and the referrer and interveners in the reference may not quite fit the bill of "claim of the parties" in an ordinary litigation. However we are bound to construe the expression "claim of the parties" in O 3 r (2)(b) and the expression "upon application by an authority specified in Subsection (3)" in s 19 (1) in a fair and liberal manner: see Constitution, s 109 (4) and Sch. 1.5. We are of the view that an application brought by an authority specified in s 19 (3) by way of a special reference does, for purpose of O 3 r 2(2), comes within the ambit of "a claim by the parties". The specified authority would no doubt have been aggrieved by the matter as affecting its own powers, duties, rights or interest; or the rights and interests of those of the public to which the authority is responsible for under the law. 

"23.	By virtue of s 19 (2), an opinion given by the Court under s 19 "has the same binding effect as any other decision of the Supreme Court". The opinion is, in effect, the equivalent of a declaration or declaratory order: SCR No. 4 of 1980; re Petition of MT Somare [1981] PNGLR 265 at 276, 284. The opinion of the Court may affect the powers, duties, rights or interest of the referring authority concerned and the interest and rights and of those of the public they are responsible for, in a more direct way similar to the claims of parties in an ordinary civil suit. It is for this additional reason that we believe the expression 'claims of the parties" should be given a broad, fair and liberal interpretation to include a reference brought under s 19." (our emphasis) 

21.	In that context, whilst prejudice is not direct on the referrer, serious questions raised may affect the rights and interest of the individuals and members of the public for which the referrer, under section 19 (1) of the Constitution, is responsible. We are satisfied therefore that the referrer will be prejudiced if stay is not granted.

Balance of convenience and preservation of status quo

22.	We accept the submissions by Mr Pato that the Supreme Court has on many occasions struck down Acts of Parliament in part or whole as unconstitutional. For instance, see Constitutional Reference No 3 of 1978; In the matter of s11(3) of the Inter–Group Fighting Act 1977 [1978] PNGLR 421, SCR No. 1 of 2000; Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council (2002) SC693, SCR No 1 of 1986; Re Vagrancy Act (Ch268) [1988] PNGLR 1, 	Constitutional Reference No 2 of 1978; Re Corrective Institutions Act 1957 [1978] PNGLR 404 and SCR No 2 of 2004; Special Reference Pursuant to Constitution Section 19 by the Morobe Provincial Executive Re Enhanced Co-operation Between Papua New Guinea and Australia Act 2004 (2005) SC785. 

23.	Balance of convenience favours grant of stay because there are, as we have stated earlier, serious constitutional issues on validity of the Act. A stay order will also preserve the status quo and preserve the rights of the parties who may be directly or indirectly affected by the Act. We should also add that these are temporary measures pending final determination on the constitutional validity of the Act.

24.	We also note that the Chief Justice and Justice Kirriwom are members of a five men bench Supreme Court that has concluded its hearing in the Supreme Court Reference filed by Dr. Allan Marat which decision is pending. It is in the national interest that that Reference is concluded expeditiously and a decision made. That Reference stands to be prejudiced by indefinite delay if the Chief Justice and Justice Kirriwom are suspended.

25.	For these reasons, we are of the view that serious and irreparable constitutional damage would be occasioned to the administration of justice if this application is not granted. In the circumstances, we invoke our discretionary powers under section 155 (4) of the Constitution and Order 3 Rule 2 (b) of the Rules and make the following orders:

1. 	Pending final determination of the Reference, 

(a)	the implementation of or the giving of effect to the decision made by the National Parliament on 4th April 2012 to refer the Chief Justice Sir Salamo Injia and Justice Nicholas Kirriwom are hereby stayed; and

(b) 	any person and or authority including those specified in section 5(2) of the Judicial Conduct Act 2012 are stayed from taking any step or action in pursuance of the said decision of the National Parliament made on 4th April 2012 to refer the Chief Justice and Justice Kirriwom; and

(c)	a Tribunal if one has been appointed pursuant to section 5(2) of the Act is hereby stayed from taking all or any step to investigate any matter under section 5 (1) of the Act in respect of the referral of the Chief Justice and Justice Kirriwom; and

(d) 	All or any of steps taken including a decision by the National Executive Council in respect of the referral of the Chief Justice is hereby stayed.

(e)	the effect, force, operation and implementation of the whole Act is stayed and the Chief Justice and Justice Kirriwom shall hear and continue to hear legal proceedings and exercise all their powers as Chief Justice and Judge respectively and all or any of their judgment or order shall continue to have full effect and be in force.

2.	These orders are effective forthwith.

3.	Cost follows the event.

____________________________________________________________

Steeles lawyers: Lawyer for the Referrer
Henaos Lawyers: Lawyer for the Attorney General & The State
Warner Shand Lawyers: Lawyer for Prime Minister & National Executive Council
Warner Shand Lawyers: Lawyer for 63 Members of Parliament
Twivey Lawyers: Lawyer for Speaker of National Parliament