In re Constitutional (Amendment) Law 2008, Reference by the Ombudsman Commission of Papua New Guinea [2013] PGSC 67; SC1302 (19 December 2013)

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Waigani: Injia, CJ, Salika, DCJ, Sakora, J, Kirriwom, J &
Gavara-Nanu, J.
2011: 24 August & 3 October
2013: 19 December

CONSTITUTIONAL LAW – Constitutional validity of legislation - Constitutional (Amendment) Law 2008- Amendments concerning powers and functions of the Ombudsman Commission relating to the Leadership Code

The Ombudsman Commission brought a Special Reference under s 19 of the Constitution challenging the validity of proposed constitutional amendments affecting the powers and functions of the Ombudsman Commission under s 27 (3) (c )& (5); s 28 (1) & (5), s 29 and s 219 of the Constitution. The amendments were contained in Constitutional (Amendment) Law 2008 (amendment law). At the time the Reference was filed, the amendment law, though passed by Parliament, had not been certified by the Speaker. Before the Court delivered its opinion on the reference, the Speaker certified the amendment law.

The Constitutional (Amendment) Law is unconstitutional, invalid and of no effect.

Isidore Kaseng v Rabbie Namaliu and the Independent State of Papua New Guinea (No.1) [1995] PNGLR 481
Re Election of Governor–General (No 2) (2004) SC728
Re Motor Traffic Act [1982] SCR No.1A of [1981] PNGLR 122
Reference by the Ombudsman Commission; Re Section 19 of the Constitution [2010] PGSC 43; SC1027 (17 May 2010)
Reference to Constitution section 19(1) by East Sepik Provincial Executive [2011] PGSC 41; SC1154 (12 December 2011)
Sir Michael T Somare v Ila Geno [2007] N3139
Special Reference by Fly River Provincial Executive, re OLIPPAC (2010) SC1057

Mr. Vergil L Narokobi, for the Ombudsman Commission, the Referror
Mr. Kelly Naru, for the National Parliament, First Intervenor
Mr. Laias Kandi, for the Attorney-General, Second Intervenor

Review the legislation governing the Ombudsman Commission, including its operation, to further strengthen and make more effective its activities so that they remain within the powers and functions provided for by the Constitution and the relevant Organic Laws;

Where necessary to recommend changes or amendments to the relevant laws and bring those to the Parliament's consideration during the term of the Committee; and

"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 Subsections 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."

A. Questions in relation to the procedures employed in the passage of Constitutional (Amendment) Law 2008

Can an authority under Section 19(3) of the Constitution file a Special Reference on the validity of a law that has been passed but is awaiting certification under Section 14(4) and 110 of the Constitution?

What are the circumstances under which Section 14(7) of the Constitution can be utilized by a person to disallow a certification of amendment under Section 14(6) of the Constitution?

Further and in the alternative, is the Constitutional (Amendment) Law 2008 contrary to the spirit and intent of the Leadership Code as interpreted pursuant to Sections 24 and 25 of the Constitution and therefore unconstitutional and invalid?

B. Specific questions on the provisions of Constitutional (Amendment) Law 2008

Is the new paragraph 27(3)(c) of the Constitution contrary to Section 55(1) of the Constitution and therefore invalid in that it places a greater obligation and duty on Departmental Heads compared to other leaders defined under Section 26 of the Constitution, and therefore deny them the right to equal treatment?

Is subsection 27(5) of Constitution (Amendment) Law 2008 contrary to Section 217(5) of the Constitution in that it interferes with the independence of the Ombudsman Commission?
Question 9

Is the new Subsection 28(5) of the Constitution contrary to Section 55(1) of the Constitution in that it creates two sets of laws and procedures, one for the leader and another for the ordinary person?

Is the new subsection 29(3) of the Constitution inconsistent with Sections 37(11) and (12) of the Constitution and therefore unconstitutional and therefore unconstitutional and invalid?

C. Questions on the Interpretation and application of Constitutional (Amendment) Law 2008 in the event that the amendments are constitutional

Does new subsection 27(5) of the Constitution prevent the Ombudsman Commission from issuing Direction under Section 27(4) of the Constitution in circumstances where funds are being used according to government policy and implementation of annual budgetary allocation but are expended contrary to financial regulations such as the Public Finances (Management) Act 1995; and other relevant laws; regulations and guidelines on the use of public funds?

In a nutshell we set out the parties positions in this reference with respect to the questions posed as they appear in the Appendix to this judgment.

Can an authority under Section 19(3) of the Constitution file a Special Reference on the validity of a law that has been passed but is awaiting certification under Section 14(4) and 110 of the Constitution?

13. Both the National Parliament and the Attorney General do not see any relevance of this question as it is not a constitutional issue, it is factual and not an issue for the Court to waste its time and resources on irrelevant matters. It is contended that section 19(3) is already quite explicit in its terms and purpose. While it may be quite trivial and not requiring judicial time spent on examining what section 19(3) is all about, for future guidance of anyone facing similar question, we will nevertheless answer the question as it could prove worthwhile in future.

14. The relevant provision of the Constitution under consideration is section 19(3) which gives power to those relevant authorities referred to therein to refer questions for the Supreme Court's opinion when the relevant laws in question are still in the process of their making through the Parliament. The powers given to the specific persons are quite explicit in that they have a wide net to refer a law already passed or a 'proposed law' which could include a law already passed but not yet come into force or a law that is still in the Bill stage as was the case in SCR No.1A of 1981: Re Motor Traffic Act [1982] PNGLR 122 where the proposed amendments to the Motor Traffic Act to introduce traffic infringement notices that gave arbitrary power to the police to impose on-the-spot fines on some motor traffic offences without the need to go to court to prove a person's guilt. The challenge to the constitutionality of that proposed law was made while it was going through the second reading.

15. This question stems from the fact that the laws that the Referror is anxious about their enactment had gone through the required readings of the Parliament but had not come into force as yet as they awaited certification by the Speaker at the time these reference questions were formulated. Both intervenors in the reference have either refrained from answering or declined to answer the question. It could only be assumed that they do not see the significance of this question as a constitutional law question or it is a non-issue.

16. Given that the laws complained about have since been certified on 15 March 2012 after the hearing of this reference, answering this question could only be an academic exercise. Be that as it may, we briefly advert to it as it is an important procedural question pertinent to a constitutional reference that will continue to pop up from time to time as and when that may be, so the issue needs to be put to rest.

17. It is imperative to note the power or authority given to the various bodies including the Ombudsman Commission by section 19(3) of the Constitution. It reads:

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

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

18. The issue here is whether the Special Reference questioning the validity of a law or proposed law awaiting certification by the Speaker under section 14(5) and 110 of the Constitution can be filed and heard before it is certified? In other words is there already a law capable of being challenged under jurisdictional powers of the Constitution under section 19(1) and (2) of the Constitution?

19. The Referror says that there is no distinction between a law already passed by the Parliament and a law awaiting certification by the Speaker. Section 19(1) Constitution empowers an authority referred to in section 19(3) to refer to the Supreme Court any questions as to the validity of a law or proposed law. Implicit in this provision is that reference to law includes proposed law.

20. It is submitted that the question of whether a proposed law is a law when it has been passed but not yet certified was answered in the joint decisions of Hinchliffe and Andrew JJ in SC487 Isidore Kaseng v Rabbie Namaliu and the Independent State of Papua New Guinea (No.1) [1995] PNGLR 481 at 517:

"..a law is 'made' when it has passed through all the required stages set out in the Standing Orders of the Parliament and when it is 'passed' and before it is certified under Section 110 of the Constitution. The making of a law is to be distinguished from the commencement of a law. The latter is the point at which the law becomes effective in terms of its application. Under Section 110 of the Constitution the Speaker certifies that a law has been 'made' by the Parliament. Clearly therefore a law is made prior to certification. There is no equivalent in Papua New Guinea to the position in the United Kingdom where a law is not made until it receives the Royal Assent."

21. We agree with the Referror that for purposes of Constitution section 19(1) special reference by any one of those authorities named in subsection (3) of section 19 Constitution, there is no distinction between a law passed by Parliament and a proposed law. And a proposed law could even include a draft law that is awaiting or has gone through the required number of readings by the Parliament or a law that was passed by the Parliament except it is still awaiting certification. The significance of certification is only relevant for purposes of commencement of the law or enforcement of the law following its passage.

22. The Special Reference is in our view competent for this court to hear and deliberate on the questions posed. We now note that since the hearing of this reference, the events have moved on in the political front where the Speaker had certified this law on 15 May, 2012.

23. Consequently, question one in the special reference is answered in the affirmative.

What are the circumstances under which Section 14(7) of the Constitution can be utilised by a person to disallow a certification of amendment under Section 14(6) of the Constitution?

24. The Constitution is pretty clear in its message under subsections 6 and 7 of Section 14. They are expressed in these terms:

(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—

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

(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."

25. Subsection (1) states that a proposed law to alter the Constitution or a proposed Organic Law must be supported on a division in accordance with the Standing Orders of the Parliament by 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.

26. Both intervenors submit that the Court refrains from answering this question because it raises issues of fact and not a constitutional issue to invite the Court for its opinion. It is submitted that the question is asking the Supreme Court to go on a fact finding marathon which is a matter that should not be confused with interpretation and application of the Constitution.

27. We agree with the intervenors that this is a question asking the Court to speculate factual circumstances. We therefore decline to answer this question.

Is the question of compliance with Section 14 of the Constitution and the Standing Orders of Parliament in the alteration of Constitutional Laws, a question that the Courts can determine?

28. The Referror submits that the question of compliance with section 14 of the Constitution and the Standing Orders of the Parliament is a question that the Courts can determine. It is argued that section 14 provides the manner and form requirements which are mandatory procedures in law-making and as such must be open to the scrutiny of the Courts. Reference is made to Supreme Court Reference No.2 of 1982 [1982] PNGLR 214 and Isidore Kaseng v Rabbie Namaliu and the Independent State of Papua New Guinea (No.1) [1995] PNGLR 481.

29. The Parliament on the other hand submits that the questions should not be answered because it does not raise any specific constitutional issue. It is very broad and ambiguous for purposes of ascertaining a specific constitutional issue the Referror wants answered. The Attorney General advances similar argument.

30. The question is clear. It is a legal and constitutional question and properly raised because of the view that what takes place on the floor of the Parliament is a matter exclusive to the Parliament. Compliance with Standing Orders of the Parliament is a matter that belongs exclusively to the Parliament but is there exception to this where the Courts can intervene. That is the essence of this question from our reading of it.

31. It is the constitutional duty and function of the Supreme Court to interpret, construct and apply the Constitution according to the dictates of the law prescribed by the Constitution itself and all other laws and acts or omissions that contradict specific constitutional dictates and prescriptions. Implicit in this function is the duty to investigate allegations of breaches or violations of the Constitution by the Parliament in the conduct of its business and affairs that are alleged to have been made in breach of the law which includes the Standing Orders.

32. We refer to Re Election of Governor–General (No 2) (2004) SC728 by Kapi CJ, Injia DCJ, Hinchliffe J, Salika J, Sakora J, a classical example where questions arose as to what advice was given to the Parliament with respect to the appointment process of a new representative of the Queen and the issue of non-justiciability arose, the Supreme Court said:

"In our view, the Queen's appointment of the Governor-General is subject to one important condition precedent - that the Parliament's decision to nominate the person concerned is done in accordance with the Constitution and Organic Law. Section 86 (4) is not intended to nor does it protect from judicial scrutiny, an appointment by the Queen based on a decision of the Parliament which is unconstitutional, illegal or ultra vires. There is no question of the justiciability of the Parliament's decision. The Parliament must strictly follow the procedures prescribed by the Constitution and the Organic Law. Failure to do so will result in a nullity of the decision and all other actions taken pursuant to that decision. The Supreme Court enunciated these principles recently in SC OS No. 2 of 2003."

33. Another classical example is In re Reference to Constitution section 19(1) by East Sepik Provincial Executive [2011] PGSC 41; SC1154 (12 December 2011) where the Supreme Court held by majority that in the case where the Constitution was breached in the dismissal of a serving Prime Minister and election of new Prime Minister, the Supreme Court had every right to determine exactly what happened in the Parliament. That case had to do with misapplication of the Constitution to achieve a desired outcome that was legally unsustainable and the Supreme Court exercised its inherent jurisdiction to correct that mistake.

34. Section 14 of the Constitution under the heading Making of Alterations to the Constitution and the Organic Laws sets out the pre-requisites and sets the parameters for the Parliament to adhere to or comply with when altering the Constitution or an Organic Law. It is like a road map that must be followed by the Parliament when making any alterations or passing any new laws. As the supreme law making body, Parliament is duty-bound to observe the procedure in section 14 in carrying out its law-making functions under section 100. It is for this reason that its acts or omissions must be subject to the scrutiny of the Supreme Court as the highest judicial body whose function is to review all judicial acts of the National Court pursuant to section155(2) of the Constitution.

35. There is no higher authority than the Supreme Court that has exclusive jurisdiction on constitutional interpretation questions and as such there can never be any doubt of the powers of the Supreme Court to determine the question of whether or not section 14 of the Constitution, which relates specifically to alteration of the Constitution itself, was complied with in conforming to the Standing Orders of Parliament when such alteration of the Constitution was undertaken by the Parliament.

If the answer to question 3(a) is 'Yes', was the prescribed procedure followed in Constitutional (Amendment) Law 2008?

36. The Referror submits that in this case there was a major flaw in the non-compliance with the Standing Order calling for the division which never eventuated. Therefore the Constitutional (Amendment) Law 2008 is invalid.

37. We beg to differ with the Referror in that the law-making process under section 100 of the Constitution had already run its full length. So the process was already complete and all that was pending was the formal steps of certification. That is an area that is in the exclusive domain of the Parliament and the Court cannot encroach into that task.

38. Parliament is the supreme law making body as stipulated in section 100 of the Constitution. Whilst we are in agreement that the Court's inherent jurisdiction to review any laws passed, the Court cannot interfere with that process nilly-willy without just cause being shown. In this case where the Parliament had already passed the Constitutional (Amendment) Law except awaiting certification at the time of this Reference, the Court must not interfere in that process and allow it to be completed.

If the answer to question 3(b) is no, does that render Constitutional (Amendment) Law 2008 unconstitutional and invalid?

As we have answered 3(b) in the affirmative, it is not necessary for us to answer this question.

Further and in the alternative, is the Constitutional (Amendment) Law 2008 contrary to the spirit and intent of the Leadership Code as interpreted pursuant to Sections 24 and 25 of the Constitution and therefore unconstitutional and invalid?

We do not consider it necessary to answer this Question for the reasons given in our answers to Questions 3(a) and 3(b).

Specific questions on the provisions of Constitutional (Amendment) Law 2008

Is the new paragraph 27(3)(c) of the Constitution contrary to Section 55(1) of the Constitution and therefore invalid in that it places a greater obligation and duty on Departmental Heads compared to other leaders defined under Section 26 of the Constitution, and therefore denies them the right to equal treatment?

(a) to ensure, as far as is within his lawful power, that his spouse and children and any other persons for whom he is responsible (whether morally, legally or by usage), including nominees, trustees and agents, do not conduct themselves in a way that might be expected to give rise to doubt in the public mind as to his complying with his duties under this section; and

(b) if necessary, to publicly disassociate himself from any activity or enterprise of any of his associates, or of a person referred to in paragraph (a), that might be expected to give rise to such a doubt and;

(c) particularly, a head of department who has control of the expenditure of public funds, shall ensure that himself or his officers, authorized to expend public funds:-

(1) Subject to this Constitution, all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex.

(2) Subsection (1) does not prevent the making of laws for the special benefit, welfare, protection or advancement of females, children and young persons, members of underprivileged or less advanced groups or residents of less advanced areas.

(3) Subsection (1) does not affect the operation of a pre-Independence law. (Emphasis is our emphasis)

41. There is nothing inappropriate about this amendment which applies to the Departmental Heads in implementing Government policies and directives and compliance with the leadership code. We cannot see how that conflicts with section 55(1).

42. The question as it is vague, speculative and inappropriate and we decline to answer it.

43. As the Supreme Court said in Special Reference by Fly River Provincial Executive, re OLIPPAC (2010) SC1057:

"15. The referring authority must state the specific question that the Court is required to express an opinion on. The question must be stated in the reference in the appropriate manner. As a matter of good practice, reference questions should be stated in a clear and concise manner with sufficient particularity by reference to specific sections or parts of sections of a Constitutional law that the law or proposed law is said to be in conflict with. Constitutional questions should not be framed in a general, ambiguous, convoluted and duplicitous manner. Statement of reference questions in this manner makes the Court's task difficult in identifying the precise question to be answered and leads counsel into "an ambitious goose chase in a jungle of provisions", so to speak, that results in the waste of the Court's time. It is in the Court's discretion to strike out such questions or decline to answer the question as offending O 4 r 16 of the Supreme Court Rules 1987.

16. The question must involve interpretation and application of a constitutional law. It is these that "are brought to bear upon the issue raised in the Reference": SCR No. 2 of 1981; Re Electoral Boundaries [1981] PNGLR 518, at 523.

17. In a Reference that raises question as to the validity of a law or proposed law, the question is determined by reference to a superior Constitutional law: see Constitution, ss 10 and 11. The Constitution is the supreme law against which all other laws including an Organic Law are measured. It may also express an opinion on the consistency law or proposed law of the Constitution as measures against another provision of the Constitution: see SCR No. 1 of 1992: Re Constitutional Amendment No. 15 – Elections and Organic Law on National Elections (Amendment No 1) 1991; Special Reference by the Ombudsman Commission under s 19 of the Constitution [1992] PNGLR 73.

18. The Court must give or decline to give its opinion on the question. The Court may decline to give an opinion if in its opinion the question is trivial, vexatious, hypothetical or unlikely to have any immediate relevance to the circumstances of Papua New Guinea: Constitution, s 19 (4); Supreme Court Rules, O 4, r 16;"

(1) There shall be an Ombudsman Commission, consisting of a Chief Ombudsman and two Ombudsmen.

(2) The members of the Commission shall be appointed by the Head of State, acting with, and in accordance with, the advice of an Ombudsman Appointments Committee consisting of—

(d) the Chairman of the appropriate Permanent Parliamentary Committee, or, if the Chairman is not a member of the Parliament who is recognized by the Parliament as being generally committed to support the Government in the Parliament, the Deputy Chairman of that Committee; and

(3) The salary and other conditions of employment of the Chief Ombudsman shall not be less than or inferior to the salary and other conditions of employment of a Judge other than the Chief Justice and the Deputy Chief Justice without taking into account any conditions of employment personal to that Judge.

(4) The salary and other conditions of employment of the Ombudsmen shall be not less than or inferior to the salary and other conditions of employment of the Public Prosecutor, without taking into account any conditions of employment personal to any particular Public Prosecutor.

(5) In the performance of its functions under Section 219 (functions of the Commission) the Commission is not subject to direction or control by any person or authority.

(6) The proceedings of the Commission are not subject to review in any way, except by the Supreme Court or the National Court on the ground that it has exceeded its jurisdiction.

(7) An Organic Law shall make further provision in respect of the appointment, powers, procedures and immunity of the Commission.

(b) any alleged action or inaction relating to a matter of administration." (Emphasis is ours)

(1) A person to whom this Division applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons, as not–

(a) to place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or

(c) to allow his public or official integrity, or his personal integrity, to be called into question; or

(d) to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea.

(2) In particular, a person to whom this Division applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Subsection (1).

(c) particularly, a head of department who has control of the expenditure of public funds, shall ensure that himself or his officers, authorized to expend public funds:-

(4) The Ombudsman Commission or other authority prescribed for the purpose under Section 28 (further provisions) may, subject to this Division and to any Organic Law made for the purposes of this Division, give directions, either generally or in a particular case, to ensure the attainment of the objects of this section.

(5) Notwithstanding Subsection (4), powers conferred on the Commission in this Section, does not include the power to give directives that prevent the implementation of National Governments policies and directives, including the implementation of the National Government's annual budgetary allocation.

(a) is convicted of an offence in respect of his office or position or in relation to the performance of his functions or duties; or

(b) fails to comply with a direction under Subsection (4) or otherwise fails to carry out the obligations imposed by Subsections (1), (2) and (3),

46. The law that this particular amendment new Subsection 5) is targeting is section 27(4) of the Constitution which is the authority the Commission had used to take critical measures in protecting public funds held in private bank accounts that did not go down well with many politicians. It is just but part of the defined responsibilities of the Commission prescribed by the Constitution under section 27.

47. The Referror argues that section 27(5) as amended is inconsistent with section 217(5) of the Constitution because it interferes with the independence of the Ombudsman Commission. It submits that whilst the amendment to section 27(3) with the insertion of paragraphs (c)(i)-(iv) in subsection (3), the Government seeks to engage the Ombudsman Commission in the implementation of government policy and directives, the proposal to restrict the powers of the Commission currently open to it under section 27(4) to issue direction does not allow the Commission to prevent misuse of public funds and protect the integrity of leaders involved. The result, it is submitted, is that the Commission's integrity can be questioned.

48. The Commission submits that section 27(4) Direction is an exceptional power that has been used to maintain the integrity of leaders and integrity of Government in PNG. It had been used sparingly and with due consideration for the need to prevent the potential misuse of public funds and at the same time not to compromise implementation of government policy. Anyone affected by the Commission's application of this provision can seek judicial review of the Commission's decision. Reference was made to Sir Michael T Somare v Ila Geno [2007] N3139.

49. Conversely it is argued on behalf of the interveners that the question is misconceived in that section 217(5) stresses the importance of the independence of the Commission in the performance of its functions under section 219 and section 27(5) does not interfere at all with the exercise of that function. Therefore the amendment is valid.

50. We are of the opinion that section 27(5) as amended is a law that dictates to the Ombudsman Commission what powers it has and what powers it does not have, or what it can do in the performance of its constitutional functions and what it cannot do. This is clearly not in harmony with section 217(5) of the Constitution that mandatorily prescribes that 'in the performance of its functions,..the Commission is not subject to direction or control by any person or authority.'

51. We have expressed in the past that the Constitution is the supreme authority and even the Parliament is subservient to it and neither the Parliament nor the elected representatives in the Parliament have the power to pass or make laws that diminishes that authority given to the Commission to act according to the wishes and aspirations of the Constitution which is the mother law of the land. That is an inalienable right of the people vested in the Commission as the Nation's watch-dog that is the only authority outside the National Judicial System that has power to exercise quasi-judicial function to protect public finance from uncontrolled use or expenditure outside the clear dictates of the Public Finance Management Act by all persons and this includes members of Parliament.

52. The purpose of this law, it seems clear from its reading and supported by the views expressed in favour of the amendment during the debates on the Bill that the Members of Parliament wanted a free-hand to deal with and spend the funds known as District Support Grants and such other funds that came into their custody by virtue of their office without the Ombudsman interfering with their right to apply the funds as and when it suited them.

53. Section 217(5) was deliberately enacted for a good purpose and that purpose was well served in accordance with section 219 of the Constitution. Section 219 is discussed separately in this judgment in conjunction with the new inclusion under section 219A in the 2008 Constitutional Amendment Law.

54. We are of the opinion that section 27(5) of the Constitution as amended is inconsistent with section 217(5) of the Constitution.

In Special Reference by Fly River Provincial Executive, re OLIPPAC (2010) SC1057, a constitutional amendment to the Constitution found by the Court to be inconsistent with an existing provision of the Constitution was declared unconstitutional for that reason. We adopt the same approach in declaring unconstitutional the 2008 amendment to s 27 (5) as being inconsistent with s 217 (5) of the Constitution.

55. As we alluded to earlier, section 219 of the Constitution sets out the Functions of the Ombudsman. It is expressed as follows:

(1) Subject to this section and to any Organic Law made for the purposes of Subsection (7), the functions of the Ombudsman Commission are–

(a) to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of–

(i) any State Service or provincial service, or a member of any such service; or

(ii) any other governmental body, or an officer or employee of a governmental body; or

(iii) any local government body or an officer or employee of any such body; or

(A) that is wholly or mainly supported out of public moneys of Papua New Guinea; or

(B) all of, or the majority of, the members of the controlling authority of which are appointed by the National Executive,

(v) any member of the personal staff of the Governor-General, a Minister or the Leader or Deputy Leader of the Opposition; or

(vi) any other body or person prescribed for the purpose by an Act of the Parliament,

specified by or under an Organic Law in the exercise of a power or function vested in it or him by law in cases where the conduct is or may be wrong, taking into account, amongst other things, the National Goals and Directive Principles, the Basic Rights and the Basic Social Obligations, and

(b) to investigate any defects in any law or administrative practice appearing from any such investigation; and

(c) to investigate, either on its own initiative or on complaint by a person affected, any case of an alleged or suspected discriminatory practice within the meaning of a law prohibiting such practices; and

(2) Subject to Subsections (3), (4) and (5), and without otherwise limiting the generality of the expression, for the purposes of Subsection (1)(a) conduct is wrong if it is–

(b) unreasonable, unjust, oppressive or improperly discriminatory, whether or not it is in accordance with law or practice; or

(c) based wholly or partly on improper motives, irrelevant grounds or irrelevant considerations; or

whether or not the act was supposed to be done in the exercise of deliberate judgement within the meaning of Section 62 (decisions in "deliberate judgement").

(3) The Commission shall not inquire into the justifiability of a policy of the National Government or a Minister or a provincial government or a member of a provincial executive, except insofar as the policy may be contrary to law or to the National Goals and Directive Principles, the Basic Rights or the Basic Social Obligations, or of any act of the Parliament.

(4) The Commission shall not inquire into the exercise of a rule-making power by a local government body.

(5) The Commission shall not inquire into a decision by a court, except insofar as the decision may show an apparent defect in law or administrative practice to which Subsection (1)(b) would apply.

(6) Except as provided by or under Division III.2 (leadership code), the Commission's powers of enforcement are limited to publicity for its proceedings, reports and recommendations, to the making of reports and recommendations to the Parliament and other appropriate authorities as provided by an Organic Law, and to the giving of advice.

(7) An Organic Law shall make provision in respect of the powers and procedures of the Commission, and in particular–

(a) shall, subject to paragraph (b), make provision for the Commission to have access to all available relevant information; and

(b) may impose reasonable restrictions on the availability of information; and

(c) shall make provision to ensure the secrecy or confidentiality of secret or confidential information made available to the Commission or to a member of the Commission or of its staff; and

(d) may limit or restrict to a reasonable extent and in a reasonable manner the jurisdiction of the Commission in relation to any matters or class of matters, and in particular in relation to national security; and

(e) shall make provision for and in respect of publicity for the proceedings, reports and recommendations of the Commission.

56. The Constitutional (Amendment) Law 2008 passed the following additional provision numbered section 219A:

57. Section 219 gives the Ombudsman Commission exclusive power and authority as the Government's watchdog to perform its functions as stipulated therein without compromise by anyone or authority. The functions include:

(i) any State Service or provincial service, or a member of any such service; or

(ii) any other governmental body, or an officer or employee of a governmental body; or

(A) that is wholly or mainly supported out of public moneys of Papua New Guinea; or

(B) all of, or the majority of, the members of the controlling authority of which are appointed by the National Executive,

(v) any member of the personal staff of the Governor-General, a Minister or the Leader or Deputy Leader of the Opposition; or

(vi) any other body or person prescribed for the purpose by an Act of the Parliament,

58. The new section 219A is not an extension or enlargement of the functions created in 219 but is all about power-sharing or diminution of that power given to the Commission in section 219 by sharing it with a Parliamentary Committee which becomes and acts like a watch-dog of the Commission in the exercise of its independent functions. It is common sense that when an authority vested with powers that are subject to oversight by a higher authority, there is no more independence. In other words, the Ombudsman Commission is no longer independent and can no longer exercise independent power or authority that cannot be compromised by the Parliament through this Parliamentary Committee.

58. This means that section 219 of the Constitution is a hollow and meaningless provision because its enforcement according to the letter of the Constitution is greatly compromised by the existence of another body that takes away much of the functions the Commission can do and watches over the Commission and its work.
Is the new section 219A contrary to sections 100 and 217(5) of the Constitution?

(1) Subject to this Constitution, the legislative power of the People is vested in the National Parliament.

(2) Subsection (1) does not prevent a law from conferring on an authority other than the Parliament legislative powers or functions (including, if the law so provides, a further power or further powers of delegation and sub-delegation).

(3) Nothing in any Constitutional Law enables or may enable the Parliament to transfer permanently, or divest itself of, legislative power."

60. The Constitution empowers the National Parliament as the supreme law-making body within our Constitutional framework of democratic system of government which also allows sharing of this legislative power where appropriate that only the Parliament can delegate this power. But this power to make laws is exercised within the bounds of constitutional limits, Parliament's power to make laws is not limitless. It cannot make laws that derogates from this objective and purpose that has the effect of usurping power vested in another Constitutional body and empower itself as the overseer of another constitutional authority.

61. This Court has expressed before that the Parliament's power to make laws is limited to making good laws, not laws that conflict with other constitutional laws of the land.

62. In our view by bestowing upon a Parliamentary Committee power over and above that of the Ombudsman Commission with a vetoing power over the Commission, section 219A is clearly not consistent with section 217(5) of the Constitution.

We do not consider it necessary to answer this question because of our answer to question 9(b).

(a) may give to the Ombudsman Commission or some other authority any powers that are necessary or convenient for attaining the objects of this Division and of the Organic Law; and

(b) shall make provision for the disclosure to the Ombudsman Commission or some other authority of the personal and business incomes and financial affairs of persons to whom this Division applies, and of their families and associates, and in particular of interests in contracts with governmental bodies and of directorships and similar offices held by them (including powers to nominate directors, trustees or agents, or similar officers); and

(c) shall empower the Ombudsman Commission or some other authority to require a person to whom this Division applies to dispose of, or place under the control of the public trustee, any assets or income where this seems to be desirable for attaining the objects of this Division; and

(e) may create offences (including offences by persons to whom this Division applies and offences by other persons); and

(f) shall provide for the investigation by the Ombudsman Commission or some other authority of cases of alleged or suspected misconduct in office, and confer on the Commission or authority any powers that are necessary or convenient for that purpose; and

(i) shall investigate and determine any cases of alleged or suspected misconduct in office referred to them in accordance with the Organic Law; and

(ii) are required subject to Subsection (1A), to recommend to the appropriate authority that a person found guilty of misconduct in office be dismissed from office or position; and

(h) may make any other provision that is necessary or convenient for attaining the objects of this Division.

(1A) An Organic Law may provide that where the independent tribunal referred to in Subsection (1)(g) finds that–

(a) there was no serious culpability on the part of a person found guilty of misconduct in office; and

it may recommend to the appropriate authority that some other penalty provided for by law be imposed or make such a directive that is necessary or convenient for attaining the objects of this Division, to that person.

(2) Where an independent tribunal referred to in Subsection (1)(g) makes a recommendation to the appropriate authority in accordance with that paragraph or with Subsection (1A), the appropriate authority shall act in accordance with the recommendation.

(3) For the purposes of Subsections (1)(g), (1A) and (2), "the appropriate authority"–

(i) a person holding an office referred to in Section 26(1)(a), (b), (c) or (d) (application of Division 2); or

(ii) a person holding an elective office that is declared under Section 26(3) to be an office to and in relation to which this Division applies,

(b) in relation to a person holding any other office to which this Division applies–means the appropriate appointing authority.

(4) An Organic Law may provide for the suspension from office of a person to whom this Division applies pending the investigation of any case of alleged or suspected misconduct in office by him.

(5) Proceedings under Subsection (1)(g) are not judicial proceedings but are subject to the principles of natural justice, and an Organic Law may provide-

for a proceeding under a law to be a bar to a proceeding for the purposes of this Division."

65. The intervenors concede to this question in that the amendment exonerates Members of Parliament or leaders generally from being subjected to the same law as all the rest of the citizens by prescribing different legal process for them when they are alleged to be in breach of the leadership code and while ordinary citizens are subject to the laws as applicable to all citizens. For example, if A was convicted of dangerous driving whilst under influence of liquor and ordered to pay fine and given suspended sentence, because he has a bad drinking problem and the employer has no desire to keep him in the job, under the disciplinary proceedings initiated by the employer which is not the same as judicial proceedings he can be dismissed from office. That is not double jeopardy. But if A was a leader covered under section 26 Constitution and to whom the provisions of section 27 and 28 applied, he cannot be dealt with again by any tribunal if a court of law has already dealt with him. Or if he has been dealt with under section 27 and 28 of the Constitution as amended and treated very lightly as intended by the amendments, he cannot be proceeded with criminally in a court of law or sued by civil summons for any damages arising out of that accident.

66. This is the unfairness of these amendments meant and intended to insulate leaders from the reach of the Leadership Code and the Ombudsman Commission under the guise of strengthening the work of the Commission.

67. This question is answered in the affirmative and the intervenors concede to the unconstitutionality of section 28(5) of the Constitution, as it is contrary to section 55(1).

"(5) Proceedings under Subsection (1)(g) are not judicial proceedings but are subject to the principles of natural justice, and an Organic Law may provide-

(b) for a proceeding under a law to be a bar to a proceeding for the purposes of this Division."

69. Section 55(1) guarantees every citizen the right to equal treatment in the enactment of laws that impose obligations and duties. Whilst discrimination by reference to the status of a citizen in the community does not come under the classifications of victimized groups set out in s 55(1), the provision must be read fairly, liberally and expansively in order that its true meaning and purpose is achieved. If the provision were read strictly, it would exclude other forms of discrimination by classifications that have been historically and even to this day used to victimize citizens. Discrimination based on a citizen's social, poitical or even economic status in the community such as whether a person is an elected or non- elected leader and whether a person is wealthy or poor do provide a real basis for discrimination; and, they do clearly come within the expanded classifications in s 55(1).

70. Preferential treatment of elected leaders from non-elected leaders in the manner in which they are subjected to the investigative and prosecution processes under the Leadership Code does come within the types of classifications set out in s 51(1),

71. It is trite law that proceedings brought under the Leadership Code provisions of the Constitution before leadership tribunals are not criminal proceedings and that such proceedings are not bar to criminal prosecutions being instituted against the leader concerned, let alone civil action emanating from that conduct against the leader. And this is the thrust of the law in section 28(5). But this is now repealed and replaced with a new subsection (5) that renders that legal position nugatory and turns leadership prosecutions into criminal proceedings where any prosecutions commenced by way of leadership prosecution is a bar to all other proceedings against the leader concerned stemming from the same complaint. And if any leader is criminally prosecuted with any offence that could amount to misconduct in office, that prosecution is bar to subsequent proceedings under the leadership code provisions of the Constitution.

72. If this amendment was allowed to stand, this law will not sit comfortably and will be in conflict with some of the more basic laws and legal principles that we have come to accept as laws of universal application since Independence.

73. Leaders generally covered by section 26 of the Constitution are not a specially disadvantaged group of children, women or underprivileged class or category of people envisaged under subsection (2) of Section 55 to be accorded different set of laws that treats them more lightly or leniently than the rest of the population. Our Founding fathers did not contemplate or envisage our leaders to be such vulnerable and disadvantaged group of people requiring greater protection than the rest of the population. It defeats the whole purpose of section 28 of the Constitution.

74. Every citizen has the right to aspire to be a leader and is a leader by his own right. But to be a leader of people holding public office except Monarchs with defined responsibilities is not a right by law or by hereditary acquisition but a right by individual choice. And having become a leader by exercise of his own free choice, a public office holder either by appointment or by result of universal suffrage, he is subject to the laws of the land that apply to that category of citizens covered in section 26 of the Constitution. Once he sees himself differently and alienates himself from the rest of the citizens after becoming a leader expecting different treatment to what the law already prescribes, that is already creating another division in the class of citizens and therefore in breach of the principle of equality of all citizens. That exception only applies to that category of citizens described in section 55(2).

75. We agree with the Ombudsman Commission that the Leadership Code is all about protection of the leader and the integrity of the office of the leader. Leaders in all walks of public life come and go and the law is there to safeguard them and the office they hold during their term in office. Laws must not be made to make anyone comfortable in his position so that he can serve forever in a public office until death.

76. Section 28(5) of the Constitution as amended by Constitutional Amendment Law 2008 is therefore unconstitutional and invalid.

77. Section 29 of the Constitution gives power to the Ombudsman Commission to consider whether a prima facie case has been made out in its investigation of a complaint made to it and to refer the matter to the Public Prosecutor for prosecution before a leadership tribunal. It provides:

(1) Where the Ombudsman Commission or other authority referred to in Section 28(1)(f) (further provisions) is satisfied that there is a prima facie case that a person has been guilty of misconduct in office, it shall refer the matter to the Public Prosecutor for prosecution before a tribunal established under Section 28(1)(g) (further provisions).

(2) If the Public Prosecutor fails to prosecute the matter within a reasonable period, the Commission may prosecute it in his stead."

78. By amendment to this section a subsection (3) was inserted by the Constitutional (Amendment Law) 2008 which provides:

"(3) Notwithstanding Subsection (1), if the Ombudsman Commission or other authority referred to in Section 28(1)(f)(further provisions) is of the opinion that-

it may give such a directive that is necessary or convenient for attaining the objects of this Division, to that person."

79. Under sub section (1) if the Ombudsman Commission, following its own investigation pursuant to a complaint, is of the view that a person is guilty of misconduct in office, it can refer the matter to the Public Prosecutor for prosecution before a tribunal established for that purpose under section 28(1)(g) of the Constitution. And if the Public Prosecutor fails to prosecute, the Commission may even prosecute under section 29(2).

80. The new subsection (3) no longer makes prosecution of a person for a misconduct offence mandatory but instead replaces that mandatory requirement with two options that the Ombudsman Commission can or may deal with the matter summarily by adopting either of these two options, namely:

"(11) A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by law or agreed upon by the parties, and proceeding for such a determination shall be fairly heard within a reasonable time.

(12) Except with the agreement of the parties, or by order of the court in the interests of national security, proceedings in any jurisdiction of a court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public."

82. Implicit in section 37(11) is that there must be a hearing first and that hearing must be held in public and determination fairly made according to section 37(12) and as such both sections come into play together by whatever authority mandated by law to make such determination. Section 37(11) clearly provides that only an impartial and independent court or an authority prescribed by law or agreed to by both parties can make any determination of the existence of a persons civil right or obligation or the extent of that right or obligation in accordance with the principles of fairness and with due speed. The emphasis here is that the exercise of this jurisdiction is for an impartial and independent court performing its judicial function to make such determination and no other. Imposing such a function or obligation upon the Ombudsman Commission or another authority is in breach of section 37(11).

83. The importance of section 37(12) is that all proceedings concerning determination of civil right or obligation of parties including announcement of decision must be done in public except in cases where in the interest of national security or agreement of the parties where such proceeding can be held in camera. Where section 29(3) of the Constitution obliges the Ombudsman Commission to make a finding that the matter does not require dismissal or that the complaint is so trivial that prosecution is unwarranted is an exercise of judicial nature that is prohibited by section 37(12) of the Constitution.

84. The Referror submits that the new subsection (3) gives Ombudsman Commission power to make findings of guilt or innocence from the evidence it had gathered or collected in or during its investigations. Once it makes that decision, Ombudsman Commission will then have to determine penalty which is not to refer based on public good or public policy. This, the Commission submits, is determining the existence of a civil right or obligation which only the courts can do because the Ombudsman Commission would not be an independent or impartial body to make that determination after collecting all the evidence following a complaint and now has to determine guilt and penalty.

85. This view by the Referror is also shared by counsel for the National Parliament who submits that section 29(3) is in breach of section 37(11) of the Constitution.

86. The Ombudsman Commission has a defined and definite role to play in the Constitutional Government of Papua New Guinea that was built into the Basic Structure of our democracy following wide and extensive consultations spanning over several years before Independence that encapsulates every inch of the law that we have today. What has been prescripted into the Constitution was not done overnight and therefore cannot be changed overnight.

87. In our view, section 29(3) of the Constitution as amended by Constitutional Amendment Law 2008 is contrary to section 37(11) and section 37(12) and therefore unconstitutional and invalid.

Questions on the Interpretation and application of Constitutional (Amendment) Law 2008 in the event that the amendments are constitutional.

Does new subsection 27(5) of the Constitution prevent the Ombudsman Commission from issuing Direction under Section 27(4) of the Constitution in circumstances where funds are being used according to government policy and implementation of annual budgetary allocation but are expanded contrary to financial regulations such as the Public Finances (Management) Act 1995; and other relevant laws; regulations and guidelines on the use of public funds?

88. In the light of our answers in Q8(a), Q9(a), Q10(a) and Q11(a), we do not consider it necessary to answer this question.

89. We therefore summarize our opinion as follows. Firstly a law having gone through all the required number of readings but awaiting certification by the Speaker is a law or proposed law that is subject to the scrutiny of this court. Certification is only a formalization of that law-making process.

90. Secondly we are of the opinion that the Constitutional (Amendment) Law 2008 was passed by the Parliament according to its internal procedures and was already law except for the certification by the Speaker which is a formalization of that law-making process. That is the Parliament's role as supreme law making body under section 100 of the Constitution that the Court cannot intervene. It would be a clear violation of the separation of powers doctrine as defined in section 99 of the Constitution.

91. Thirdly, we are of the opinion that Questions 5 and 7 are speculative in nature apart from being vague and we decline to answer them.

92. Fourthly, we find that Q. 8(a), Q. 9(a) and (b), Q. 10(a) and Q. 11(a) are answered in the affirmative and therefore the provisions of the Constitutional (Amendment Law) referred to in those questions are unconstitutional and invalid. The effect of this finding means and includes that those amendments that are in conflict with the existing provisions of the Constitution in Sections 217(5), 55(1), 37(11) and (12) (ie. prior to the amendments) cannot be allowed to stand and must be declared invalid as having no force or effect in law. In other words Constitution section 27(5) as amended is not a valid law as it contravenes section 217(5) of the Constitution. By the same token, the whole of section 219A of the Constitution as amended, that establishes a Parliamentary Committee to act as the watch-dog of the Ombudsman Commission, is also invalid and of no force and effect as it takes away the independence of the Commission guaranteed by the Constitution. Furthermore, section 28(5) of the Constitution as amended is in direct contradiction to or in contravention of section 55(1) that stipulates that all citizens are equal in the eyes of the law when this law separates Members of Parliament as a separate group of citizens who are not covered by this law and who are to be treated differently from the other citizens. And finally, section 29(3) of the Constitution as amended is ultra vires section 37(11) and (12) in that not only is the provision empowering the Ombudsman Commission to exercise certain judicial function in determining the question of serious culpability of a person against whom a complaint is made in a particular way rather than exercising its own independent discretion in dealing with the matter under the Constitution, it is directing the Ombudsman Commission on what to do which is in direct contravention of section 37(11) and (12) and as such is of no force and effect.

93. For the foregoing reasons, we find and declare that the Constitutional (Amendment) Law 2008 is unconstitutional, invalid and of no effect.
_________________________________________________________
Ombudsman Commission In-House Lawyer: Lawyers for the Referror
Solicitor General: Lawyer for the Attorney General
Kelly Naru Lawyers: Lawyer for the Parliament

Questions	Ombudsman Commission	Parliament	Attorney-General
1Can an authority under Section 19(3) of the Constitution file a Special Reference on the validity of a law that has been passed but is awaiting certification under Section 14(4) and 110 of the Constitution?	Yes	Should not be answered	Unable to or cannot provide an answer
2 What are the circumstances under which Section 14(7) of the Constitution can be utilised by a person to disallow a certification of amendment under Section 14(6) of the Constitution?	Circumstances prescribed under Constitution section 14(6) only	Should not be answered	Unable to or cannot provide an answer
3(a) Is the question of compliance with Section 14 of the Constitution and the Standing Orders of Parliament in the alteration of Constitutional Laws, a question that the Courts can determine?	Yes	Should not be answered	Cannot be answered
3(b) If the answer to question 3(a is Yes, was the prescribed procedures followed in Constitutional (Amendment) Law 2008?	No	Should not be answered	Cannot be answered
3(c) If the answer to question 3(b) is no, does that render Constitutional (Amendment) Law 2008 unconstitutional and invalid?	Yes	No	No
5 Further and in the alternative, is the Constitutional (Amendment) Law 2008 contrary to the spirit and intent of the Leadership Code as interpreted pursuant to Sections 24 and 25 of the Constitution and therefore unconstitutional and invalid?	Yes	No	No
7Is the new paragraph 27(3)(c) of the Constitution contrary to Section 55(1) of the Constitution and therefore invalid in that it places a greater obligation and duty on Departmental Heads compared to other leaders defined under Section 26 of the Constitution, and therefore deny them the right to equal treatment?	Yes	No	No
8(a)Is subsection 27(5) of Constitution (Amendment) Law 2008 contrary to Section 217(5) of the Constitution in that it interferes with the independence of the Ombudsman Commission?	Yes	No	No
9(a) Is the new Section 219A of the Constitution contrary to Section 100 and Section 217(5) of the Constitution and therefore unconstitutional and invalid?	Yes	No	No
9(b) Alternatively, is the new section 219A(2)(i) and (ii) contrary to Section 55(1) of the Constitution, in that it places a greater duty on members of the Commission, as there are existing procedures in the law dealing with the conduct of the members of the Commission for purposes of the Leadership Code?	Yes	No	No
10(a) Is the new Subsection 28(5) of the Constitution contrary to Section 55(1) of the Constitution in that it creates two sets of laws and procedures, one for the leader and another for the ordinary person?	Yes	Yes	Yes
11(a) Is the new subsection 29(3) of the Constitution inconsistent with Sections 37(11) and (12) of the Constitution and therefore unconstitutional and therefore unconstitutional and invalid?	Yes	Yes	No
12 Does new subsection 27(5) of the Constitution prevent the Ombudsman Commission from issuing Direction under Section 27(4) of the Constitution in circumstances where funds are being used according to government policy and implementation of annual budgetary allocation but are expanded contrary to financial regulations such as the Public Finances (Management) Act 1995; and other relevant laws; regulations and guidelines on the use of public funds?	No	Yes	Yes

Supreme Court of Papua New Guinea

In re Constitutional (Amendment) Law 2008, Reference by the Ombudsman Commission of Papua New Guinea [2013] PGSC 67; SC1302 (19 December 2013)