Reference by the Ombudsman Commission; Re Section 19 of the Constitution [2010] PGSC 43; SC1027 (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) SC754
The Ombudsman Commission, Ila Geno v The Speaker of National Parliament & Others ( 2003) SC721

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 consultation with the Chief Justice or a Judge nominated by the Chief Justice for the purpose, certifies that the proposed law—

(a) does not affect the substance of any provision to be altered by it; or

(b) is designed to correct a self-evident error or omission; or

(c) is merely incidental to or consequential on some other alteration of this Constitution or of any other law,

and such a law may be made in the same way as Acts of the Parliament.

(7) The Supreme Court may, on the application of any person made within four weeks after the date of a certificate under Subsection (6) or such further time as a Judge, on application made within that period, considers reasonable in the particular circumstances, disallow the certificate, but otherwise the certificate is conclusive."

7. The interim order seeks to prevent the Speaker from performing his function under s 14 (4) and (5) pending determination of the reference.

8. Two main issues arise for our consideration. First, whether this Court has jurisdiction to grant interim injunctive relief in a special reference brought under s19. Second, if so whether this Court in the exercise of its discretion should grant the interim relief.

Jurisdiction

9. The question is whether the term "Original Jurisdiction" used in SCR, O 3 r (1) includes a special reference brought under s 19. Mr Narokobi of counsel for the Commission submits, it does. He acknowledges that there is no case precedent on point to support his argument but draws our attention to this Court's decision in The Hon. Bill Skate and Peter O' Neill v Jeffrey Nape, Speaker of Parliament (2004) SC 754. In that case the Court held that an Originating Summons filed under s 18 (1) seeking declaratory orders was a matter within the original jurisdiction of the Court and the provisions of O 3 r 2 (2)(a) was available to the plaintiff/applicant. Mr Narokobi invites us to extend the same reasoning to a reference brought under s 19.
   
10. Mr Kandi from the Solicitor - General's Office who appeared as amicus curiae makes no submissions on this point.
    
11. We are unable to find any case decided by this Court on this point. It seems to us that this may be the first time that an application of this nature is brought in a Reference under s 19.
    
12. We consider the issue in the context of the scheme of the Constitution, Subdivision C under which s 18 and s 19 appear and SCR, Part 2 (Original Jurisdiction) under which O 3 appears.
    
13. Constitution, Subdivision C, Sections 18 and 19 state as follows:
    

"Subdivision C.—Constitutional Interpretation.

18. Original interpretative jurisdiction of the Supreme Court.

(1) Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

(2) Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.

19. Special references to the Supreme Court.

(1) Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.

(2) An opinion given under Subsection (1) has the same binding effect as any other decision of the Supreme Court.

(3) The following authorities only are entitled to make application under Subsection (1):—

(a) the Parliament; and

(b) the Head of State, acting with, and in accordance with, the advice of the National Executive Council; and

(c) the Law Officers of Papua New Guinea; and

(d) the Law Reform Commission; and

(e) the Ombudsman Commission; and

(ea) a Provincial Assembly or a Local-level Government; and

(eb) a provincial executive; and

(ec) a body established by a Constitutional Law or an Act of the Parliament specifically for the settlement of disputes between the National Government and Provincial Governments or Local-level Governments, or between Provincial Governments, or between Provincial Governments and Local-level Governments, or Local-level Governments; and

(f) the Speaker, in accordance with Section 137(3) (Acts of Indemnity).

(4) Subject to any Act of the Parliament, the Rules of Court of the Supreme Court may make provision in respect of matters relating to the jurisdiction of the Supreme Court under this section, and in particular as to—

(a) the form and contents of questions to be decided by the Court; and

(b) the provision of counsel adequate to enable full argument before the Court of any question; and

(c) cases and circumstances in which the Court may decline to give an opinion.

(5) In this section, "proposed law" means a law that has been formally placed before the relevant law-making body."

14. Subdivision C relates to matters within the original jurisdiction of the Supreme Court which includes references under s 18 and s 19. Section 18 (1) confers exclusive jurisdiction on this Court to determine any question as to the interpretation of a Constitutional law. The term "exclusive jurisdiction" in s 18 (1) when read in the context of the term "original jurisdiction" are synonymous expressions. Sections 18 and 19 therefore are to be read together in order to understand this Court's original jurisdiction on matters of constitutional interpretation and application.
    
15. It is clear to us that two types of proceedings may be brought under Subdivision C. First, under s 18 (1), an Originating Summons seeking declaratory orders in matters involving interpretation and application of a Constitutional Law may be brought by any person having sufficient interest to bring the proceedings: see 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; Sir Pato Kakaraya v The National Parliament (2004) SC 752. An application for interim relief in an Originating Summons may be brought under SCR, O 3 r 2 (b): The Hon. Bill Skate and Peter O' Neill case; Sir Pato Kakaraya case.
    
16. Second, two types of Constitutional references may be brought under Subdivision C - s 18 (2) reference and s19 reference. Under s 18 (2), a Court or tribunal other than the Supreme Court may in a particular case before it where a Constitutional question arises, refer the question to the Supreme Court. Upon referral, the National Court may take other actions that are necessary to halt the proceedings pending determination of the reference. The expressions "and take whatever other action (including the adjournment of proceedings) is appropriate" confers wide discretion in the National Court or tribunal to make appropriate orders to preserve the rights of the parties in the claim including a stay of proceedings. In circumstances where parties in the National Court proceedings feel their claims may be further prejudiced after the referral, we do not see any difficulty with those parties seeking relief under SCR, O 3 (2)(b).
    
17. The second type of reference is a special reference brought under s 19 by an authority prescribed in Subsection (3). The jurisdiction given to the Supreme Court by s 19 does not include jurisdiction to grant interim relief in a special reference. However, s 19 (4) provides for an Act of the Parliament or the Rules of the Supreme Court to" make provision in respect of matters relating to the jurisdiction of the Supreme Court under this section" including those specific matters set out in (a) to (c) (inclusive).
    
18. The Supreme Court Act (Ch. 37) is silent on the Court's jurisdiction to grant interim relief in a reference under s 19: cf s 5 (1) which provides for interim relief in an appeal.
    
19. The Supreme Court Rules 1984, Part 2, Order O 3 (1) and (2) provide for the Court's jurisdiction to grant interim relief in matters within the original jurisdiction of the Supreme Court. Order 3 rule 1 and rule 2 state as follows:
    

"PART 2—ORIGINAL JURISDICTION

ORDER 3—PROCEDURE

Division 1.—Commencement and continuance of proceedings

1. Proceedings which relate to a matter or question within the original jurisdiction shall be entitled "In the Supreme Court of Justice" and shall be commenced and continued in accordance with these Rules.

2. Where any proceedings under Rule (1) are pending before the Court—

(a) a direction not involving a final decision upon the proceedings;

(b) an interim order to prevent prejudice to the claims of the parties;

(c) an order for security for costs; or

(d) an order in the nature of orders such as are referred to in Section 8(1)(a), (b), and (c) of the Act—

may be made by a Judge.

3. .........."

20. Part 2 of the Supreme Court Rules 1984, in our view, quite conveniently and appropriately so, gives the Supreme Court jurisdiction to grant interim relief in matters which come within the "Original Jurisdiction" of the Supreme Court. SCR, Part 2 (Orders 3 and 4) appropriately provides for reference under s 18 and s19 as coming within the original jurisdiction of the Supreme Court. SCR, Order 3 completes the provisions of Constitution, Subdivision C in conferring on the Supreme Court jurisdiction to grant interim relief in matters which come within the original or exclusive jurisdiction of the Court.
    
21. We are in agreement with the Court in The Hon Bill Skate and Peter O'Neill case that the Court's power to grant interim relief in a matter within its original jurisdiction is given by SCR, O 3 r 2 (b) and not by Constitution, s 155 (4). We note the difference between an Originating Summons filed under s 18 (1) and a reference brought under s 19. In an Originating Summons there are named parties. The plaintiff or applicant is ordinarily an aggrieved person who is seeking redress for breach or deprivation of a recognized civil right. Then there are adverse parties. The same may be said of parties whose rights are subject of litigation in a Court or tribunal which becomes subject of a s 18 (2) reference. As we have already said, such parties may have recourse to the relief given by O 3 r 2 (b).
    
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.
    
24. The present application is also brought under SCR, O 4 r 8 (e) which gives the Court power to make directions in a Reference in relation to the matters specified in paragraphs (a) – (e) (inclusive). None of those matters specified in paragraphs (a) – (d) relate to grant of interim relief. Paragraph (e) is a general provision which empowers the Court to make directions in relation to "such other matters as the Judge considers proper". In our view the class of matters under (a) – (d) for which directions are made may be extended to matters similar to or incidental to those matters. Paragraph (e) should not be widely interpreted to include interim relief, which could amount to making a new rule.
    
25. Accordingly, we find that the present application is properly brought under SCR, O 3 r (2) (b).
    

Discretion

26. SCR, O 3 r 2 (b) of course gives this Court a judicial discretion which is to be exercised on proper grounds and circumstances. The relevant considerations to be taken into account are adequately canvassed by the Supreme Court in the Hon. Bill Skate and the Hon. Peter O' Neill case and which were later expounded in Sir Pato Kakaraya v The National Parliament (2004) SC 767. Mr Narokobi has conveniently summarized those in his submissions and we adopt them. In addition, in an application for interim relief in a reference brought under s 19, 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 and performance of associated functions by designated persons or authorities. We restate those considerations for purpose of an application for interim relief in a Reference under s 19, as follows:
    
    • (1) 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.
      
27. Although SCR, O 3 provides for the powers under r 2 to be exercised by a single judge of the Supreme Court, we consider that the seriousness and importance of the issues to be determined in a reference; the serious consequences that may flow from an interim relief; and good practice, demand that such an application be made before the full Court. The application should be made on three clear days notice to potential interveners such as the Attorney - General and the Speaker of the Parliament in order to give them an opportunity to be heard on the application. The current practice of referrers and applicants bringing proceedings under s 18 (1) seeking interim relief ex parte is to be discouraged.
    
28. Mr Narakobi points to a number of aspects of formal requirements for alteration of the Constitution that he says Parliament failed to comply with in the process of enacting the amendment. For instance, the records do not show the proposed amendments were referred to the Constitutional Laws and Acts Committee for its consideration and report as required by Standing Order 24 C (4); no real opportunity for debate on the proposed amendments were afforded to members of parliament in breach of Constitution s 14 (1) and the Speaker on the two votes taken cast the deciding vote in breach of Constitution, s 114 (2).
    
29. Mr Narokobi also points to a number of aspects of the amendments which alters the standard of findings required to establish a prima facie case of misconduct in office; establishment of a Permanent Parliamentary Committee on the Ombudsman Commission to assume some of the investigative functions of the Commission; empowering the Commission to investigate departmental heads' failure to implement government policies, grant of immunity; qualifying the nature of constitutional directions issued by the Commission to leaders to prevent breach of the Leadership Code; and imposing different standards of conduct for leaders compared with the ordinary people.
    
30. He submits there are serious issues to be tried and the amendments may be invalidated by this Court on grounds of failure to comply with those formal requirements or the substantive requirements referred to above: Haiveta v Wingti (No 3) [1994] PNGLR 197; SCR No. 2 of 1982; re the Organic Law on National Elections (Amendment Act) No. 1) [1982] PNGLR 214; Isidore Kaseng v Rabbie Namaliu and the Independent State of Papua New Guinea (No.1) [1995] PNGLR 481. If the status quo is not preserved by an interim order, the Commission stands to be prejudiced by the amendments. The amendments pose great difficulty for the Commission to discharge its constitutional function in a fair, transparent, efficient and impartial manner
    
31. Mr Kandi took no position on the application but made submissions on aspects of jurisdiction. He brought to our attention the case of James Eki Mopio v The Speaker of the National Parliament [1977] PNGLR 420, where the Supreme Court decided that the procedures prescribed by the Constitution and the Parliament Standing Orders is non-justiciable but this case was distinguished in Haiveta v Wingti (No. 3) [1994] PNGLR 97.
    
32. We consider the application before us should be determined on the meaning of Constitution, s 13 and s 14 (1), (3) and (4) and other related provisions and their application to the nature of the order sought.
    
33. The procedure for altering a provision of the Constitution is prescribed by s 13. A Constitutional law is made by Parliament "... that is expressed to be a law to alter this Constitution... and is made and certified in accordance with Section 14 (making of alterations to the Constitution and Organic Laws)". The enactment of the Constitutional law and its certification are part and parcel of a single process of altering the Constitution. Once the law is made by Parliament in compliance with s 14 (1) – (3), certification by the Speaker of the Parliament under s 14 (4) must follow as a matter of formality and as a matter of course.
    
34. The process of enactment commences with distribution of the proposed law to members of Parliament and publication of the proposed law in the national gazette by the Speaker: s 14 (2). The gazetted notice is necessary to give members of Parliament and members of the public an opportunity to consider the proposed law and express their views. A period of one month must precede the formal introduction of the proposed law in Parliament as required by s 14 (3). As from the formal introduction of the proposed law in Parliament up to and including debate and vote on the proposed law, the proceedings before Parliament are privileged and non-justiciable ( Constitution, s 115 and s 134); it should not be interfered with by anyone including this Court: James Eki Mopio v The Speaker of the National Parliament [1977] PNGLR 420. After the proposed law is formally presented and debated and a vote is taken, certification of the new law by the Speaker must follow as a matter of formality to complete the Constitutional process of law-making. The Court must not interfere with that constitutional law-making process in Parliament until Parliament has completed that Constitutional process and the Constitutional amendment becomes law. Constitution, s18 and s 19 provides avenues for judicial interpretation and application of that Constitutional amendment law.
    
35. In a case where a law, as opposed to a proposed law, is the subject of a reference under s 19, the proposed law must have become law before the constitutional questions raised in the reference are considered and determined. In the present case, the reference is brought on the basis that the Constitutional (Amendment) Law is or has become law. The Commission must therefore await certification of the law before the reference is argued before this Court.
    
36. The Commission could have challenged the proposed law that was gazetted on 22nd October 2008 and before the proposed law was " formally introduced into the Parliament" in accordance with s 14 (3). A reference under s 19 could have been brought on the proposed law and an application of the type before us could have been in order.
    
37. The Commission has brought a reference raising questions as to the interpretation and application of provisions of the Constitutional (Amendment) Law. The present application is decided on the first consideration mentioned earlier. It is not necessary to consider the remaining four criteria. The seriousness of those issues will be determined by this Court in due course. This court is in no position to determine the seriousness of those issues at this stage. It is not necessary to determine the prejudice that the Commission stands to suffer at this stage of the proceedings on the reference. It is also not necessary to consider the balance of convenience and maintenance of the status quo.
    
38. Before we finish, we make an observation in relation to this Court's jurisdiction under s 14 (6) and (7). The application of Subsection (7) was raised by the Court towards the conclusion of counsels' submissions. We agree with Mr Narokobi that those provisions confer a special jurisdiction to this Court to advise the Speaker on proposed alterations to the Constitution on consequential or cosmetic aspects of proposed amendments only and after the amendments are made, for this Court to review the certificate issued under Subsection (6). Those provisions have not been invoked in this case and we are in no position to determine any such issues. They may arise in another case in the future.
    
39. For the foregoing reasons, we dismiss the application. We make no order as to costs.
    

Orders

40. The formal orders of the Court are:
    
    • (1) The application is dismissed.
      
    • (2) No order as to costs.

_______________________________________

Counsel for Ombudsman Commission : Lawyer for the Applicant
Solicitor General: Lawyer for Attorney-General