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Application by Dr Philip Kereme, In re [2017] PGSC 23; SC1600 (10 August 2017)

SC1600


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


S.C.A. NO. 148 2015


In re Application pursuant to Constitution Section 18(1)


BETWEEN:
APPLICATION BY DR PHILIP KEREME,
CHAIRMAN OF THE PUBLIC SERVICE COMMISSION
Applicant


AND:
The HON PETER O’NEILL,
PRIME MINISTER
First Intervener


AND:
THE HON ANO PALA,
MINISTER FOR JUSTICE & ATTORNEY GENERAL
Second Intervener


AND:
THE HON. THEO ZURENUOC,
SPEAKER OF THE NATIONAL PARLIAMENT
Third Intervener


AND:
THE HON SIR PUKA TEMU, MISTER FOR PUBLIC SERVICE
Fourth Intervener


Waigani: Injia CJ
2017: 31st July
7th & 10th August


SUPREME COURT – Original jurisdiction- Application under Section 18 (1) of the Constitution - Conduct of trial on facts before single judge of the Supreme Court- Practice and procedure to be followed - Constitution, s 18(1); Supreme Court Rules 2012, O 3 r 3.


Counsel


N Yalo, for the Applicant
L Kandi, for the Interveners


10th August, 2017


  1. INJIA CJ: This is an application brought by Dr Phillip Kereme on behalf of the Public Service Commission pursuant to s18(1) of the Constitution. The application involves the interpretation and application of provisions of Sections 12, 14, 99, Part VIA (Sections 187A 187J), 190, 192, 193 and 208B of the Constitution. The Applicant seeks declarations that on a proper interpretation and application of the Constitutional Law provisions, certain statutory enactments are inconsistent with those provisions and are therefore invalid. Those statutory enactments in question are the Constitutional Amendment (No. 38) (Appointment of Certain Offices) Law 2014, Organic Law on Provincial Governments and local-level Governments (Amendment) (No 13) Law 2014, Organic Law on Provincial Governments and Local-level Governments (District Development Authority) (Amendment) Law 2014, District Development Authority Act 2014, Public Service Management Act 2014, Regulatory Statutory (Appointment to Certain Offices) (Amendment) Act 2013, Public Service (Management) (Employment of Departmental Heads) Regulations 2014, Public Service (Management) (Employment of Provincial Administrators) Regulations 2014 and Regulatory Statutory (Appointment to Certain Officers) Regulations 2013.
  2. An application brought under s 18(1) of the Constitution is brought in the original jurisdiction of the Supreme Court and brought under the procedures set out under O 4 of the Supreme Court Rules 2012.
  3. On 31 August 2016, the Supreme Court (Cannings J, Yagi J & Kangwia J) granted the Applicant standing to bring this application: see O 4 r 1 of the Supreme Court Rules 2012.

JURISDICTION OF A SINGLE JUDGE TO MAKE FINDINGS OF FACT


  1. The jurisdiction of a single Judge of the Supreme Court to take the evidence and make findings of fact for the full Court that is seized of a matter that falls within the original jurisdiction of the Supreme Court is found in O 3 r 3 of the Supreme Court Rules 2012. The bench that is hearing the matter may commission one of the members or another judge of the Supreme Court to conduct a trial on the facts and make findings of fact that is then presented to the full Court for its consideration and adoption: see Application of Gem ( 2010 ) SC 1065.
  2. On 25th July 2017, the full Court comprising myself, Batari & Lenalia JJ commenced hearing of the substantive application. In the course of the hearing, it became apparent that there were facts that needed to be ascertained from the affidavits filed by the parties. Pursuant to O 3 r 3 of the Supreme Court Rules 2012, the full Court appointed me to take the evidence and make findings of fact. The hearing was adjourned pending determination of the facts.

CONDUCT OF THE TRIAL


  1. The trial was conducted on 31 July 2017 and 7th August 2017. This judgment contains my findings of fact.
  2. In conducting a trial on the facts under O 3 r 3 of the Supreme Court Rules 2012 in an application under Section 18 (1) of the Constitution, ordinary rules of practice and procedure relating to pleading of a cause of action in a civil claim and reception of evidence in Court apply. The pleadings of the cause in the application and statements in response from the interveners must plead the cause of action in clear, concise and sufficient terms. Those pleadings must spell out the issue(s) for trial - The pleadings must drive the evidence. Evidence must be formally admitted into evidence in accordance with ordinary and established rules and principles for reception of evidence in a trial. The Evidence must be material and relevant to the issues in the substantive application. The findings of fact must be supported by the evidence. I have followed these principles in conducting the trial in the case at hand.

PLEADINGS

  1. The pleadings appear in the following documents filed by the parties:

ISSUES FOR TRIAL


  1. The relevant and material facts to be found are driven by the Constitutional Law issues pleaded in the application. Those issues are reproduced in Schedule “A” to this judgment (see pages 22-24).
  2. There are two main issues identified in the application that remain to be tried and determined by the full Court. The first relates to compliance with procedural requirements prescribed by the Constitution for enacting an amendment to the Constitution and an Organic Law. These are found in Schedule “A”, paragraphs 4.25, 4.26, 4.27, 4.29 and 4.31.
  3. The second and substantive issue relates to inconsistencies between certain provisions of the Constitution and the amendments including the Constitution Amendment (Appointments to Certain Offices) Law 2014 in question.

EVIDENCE


  1. The affidavit evidence introduced by the parties were uncontested. The parties tendered various affidavits without objection and those were admitted into evidence, subject to questions of relevance being addressed in the course of argument.
  2. The affidavits admitted into evidence are:-
  3. The parties do not dispute most if not all the facts to be drawn from the evidence. Their respective written statements of agreed facts are essentially the same except for minor variations in a few areas suggested by the interveners which the applicant does not dispute. It is for this Court to determine whether it should make findings of facts in the terms agreed to by the parties and to draw reasonable inferences from them, applying ordinary rules of practice and procedure and principles of evidence. In performing this task, I went through those statements of agreed facts with the parties, line by line, and asking the necessary questions and received their responses that addressed issues of relevance and ensured that the facts were supported by the evidence before me. Many of the facts were derived from inferences drawn from the scheme of the legislations that were apparent on the face of those legislations and I found no difficulty in accepting them. Other facts were drawn from inferences drawn from statutory reports such as the Final Report of the Constitutional Planning Committee, government policy papers and submissions and decisions of the NEC and the executive government statutory instruments issued under statute such as Gazettal Notices. I also found no difficulty in accepting those inferences.
  4. I make findings of fact in terms of the statement of agreed facts submitted to me by the parties.

Agreed Facts


  1. The facts appear in chronological order of the legislative activity since Independence in 1975, commencing from the establishment of the Public Services Commission (PSC).

1975


  1. Prior to declaration of Independence for Papua New Guinea, the Constitutional Planning Committee considered the popular view expressed by the people that an organization such as the PSC be established by the Constitution. Accordingly its final recommendation was incorporated in the Constitution. See Chapter 12 Final Report of the Constitutional Planning Committee 1974 and Part VII of the Constitution. See Constitution Sections 190 – 195. Also see Constitution, s 24.
  2. The PSC was bestowed with both the “review” and “advisory” functions of a Constitutional watchdog together with the executive functions on recommendation on the appointment and termination of government departmental or agency heads. See Constitution, s 190 and s195.
  3. The National Executive Council (NEC) was bound by the recommendations of the PSC.

1986


  1. 20. The NEC made a policy decision to establish the Siaguru/Cochran Committee to review the roles and functions of the PSC in order to separate the “Watchdog review" and "advisory" functions from the executive policy making and operational functions. There is no evidence of this policy decision and the terms and reference and work of the Siaguru/Cochran Committee. However I accept the position of the parties that such a Committee was appointed and a major review of the PSC functions was carried out.
  2. 21. As a result, a major reform of the National Public Service occurred in 1986. By Constitutional Amendment No 8. Public Services Commission, Sections 190, 191 and 192 of the Constitution were repealed and replaced with amended provisions. The composition of the PSC being reduced from “not less than four” to three.
  3. 22. The Public Services (Management) Act 1986 created the Department of Personnel Management (DPM) to perform executive policy formulation and operational functions.
  4. 23. The Public Services (Management) Act 1986 also defined the role and functions of the PSC under Sections 190 to 194 of the Constitution. The role of the PSC was to oversee the appointment and termination processes conducted by the DPM and to make recommendations to the NEC.

1995


  1. 24. In 1995, the Public Services (Management) Act 1986 was amended in order to implement amendments to the Organic Law on the reform of the Provincial Government and Local-level Government system.
  2. 25. Furthermore the Parliament enacted the Public Services (Management) Act 1995, to make provision for, among others, the appointment, conditions of employment, constitution, powers, procedures and functions of the PSC. The NEC was required to “consult” the PSC on the appointments of agency heads.

2003


  1. 26. In 2003 the Parliament passed the law Constitutional Amendment No. 25 – The State Services. It made substantial amendment to Section 193 of the Constitution. Section 193 was amended to restore the role and functions of the PSC as per Section 191 of the Constitution that were removed in 1986.
  2. 27. The Public Services (Management) Act 2003 conferred on the PSC the responsibility to: –
  3. 28. The amendment to Section 193 restored the “recommendation” function of the PSC and thereby restored the "recommendation" functions pursuant to Section 191 of the Constitution that were removed in 1986.
  4. 29. The Head of State made the Public Services (Management)(Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003(No. 5 of 2003) which came into operation on 11 August 2003. It provided for, among others, the procedures for appointment of departmental heads and provincial administrators.
  5. 30. In August 2003 the Head of State made a Regulation, Public Services (Management)(Minimum Persons Specification and Competency Requirements for Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 (No. 6 of 2003)to implement Sections 31A, 31B, 60A and 60b of the Public Services (Management) Act 1995. It provided for merit-based assessment by the PSC of candidates for the appointment of departmental heads and provincial administrators.
  6. 31. In August 2003 the Head of State made a Regulation namely, the Public Services (Management) (Criteria and Procedures for Suspension and Revocation of Appointment of Departmental Heads) Regulation 2003 (No 7 of 2003). As the name suggests it was made for the purposes of spelling out the criteria and procedures for suspension and revocation of appointment of departmental heads.
  7. 32. The Public Services (Management) Act 2003 conferred on the PSC responsibility over the recruitment, selection and appointment processes by overseeing the operational role of the DPM in the following areas:
  8. 33. The DPM was required by the Public Services (Management) Act 2003 and the Regulations to perform the same functions that were conferred on the PSC.

2004

  1. 34. In 2004, further Constitutional amendment Constitutional Amendment No 29 – Regulatory Statutory Authorities was passed inserting a new Part VIIA in the Constitution (ss. 208A and 208B of the Constitution) providing for a merit-based appointment or suspension and revocation of appointment of heads of Regulatory Statutory Authorities (RSAs).
  2. 35. In April 2004 the Parliament enacted the Public Services (Management) (Amendment) Act 2004(No 2 of 2004) conferring further powers on the PSC to conduct merit-based assessment of candidates for appointment as departmental heads.
  3. 36. Again in April 2004, the Parliament passed the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004 (No. 3 of 2004). It was certified on 13 April 2004. The Act was enacted to implement Part VIIA of the Constitution relating to the declaration of Statutory Regulatory Authorities (hereafter the RSA), the appointment, suspension and revocation of appointment of chief executive officers of RSAs, etc., see Preamble to the Act.
  4. 37. The Act introduced merit-based appointment process which involved the PSC making recommendation to RSA boards to appoint chief executive officers of RSAs, see Section 5 of the Act.
  5. 38. The Constitutional amendment and the RSA Act 2004 made the appointment, suspension and termination of RSA Heads uniform to the appointment, suspension and termination of the heads of public service including the Provincial Administrators: new Sections 208A and 208B of the Constitution.
  6. 39. In all the processes noted above the DPM administered the PSMA 1995, the RSA Act 2004 and the related Regulations. The DPM was involved in the criteria under those laws as regards the fit and proper person specifications for merit-based selection procedures and appointment processes and the contractual provisions for agency heads.
  7. 40. The PSC performed the same role for the CEO's in these processes as for departmental heads and provincial administrators.

2012

  1. 41. In 2012 public service reform was amongst the list of the new O’Neill Government’s policy priorities. The “Alotau Accord”, a copy of which is in evidence, as it relates to the public service reform reads:

“Review of the Department of Personnel Management and the Public Service Commission. Abolish the Department of Personnel Management and restructure the Public Service Commission. The Public Service Commission is given the Constitutional powers and responsibility to oversee the efficiency of the public service. The Commission is accountable to the NEC and Parliament. Establishment of a smaller office representing Personnel Management, the department would focus solely on deployment of public servants and their ongoing training”. See paragraph 21 on pages 18 and 41 and 42 of the Application Book Vol. 1.


  1. 42. Upon the formation of the new Government in August 2012, the new government, through the NEC, determined that the roles and functions of the DPM and the PSC were to be reviewed and DPM abolished: refer to NEC Decision No. NG113/2012
  2. 43. However, following a detailed functional and legislative review the Alotau Accord was amendment by NEC resolutions, NEC Decision No NG173/2012 (and subsequently NEC Decision No 39/2012) annulled the earlier NEC decision No NG 54/2012 and NG 113/2012. The Alotau Accord was amendment to retain the DPM and the PSC to once again separate the executive functions from PSC and to strengthen its investigation functions under its own Act pursuant to Section 191 of the Constitution: See Court Exhibit "G".
  3. 44. The duplicated roles and functions of the PSC and the DPM under Section 193 and 208B of the Constitution were to be removed and the PSC was to perform “review” and “advisory” functions by reinstating the 1986 reform of the PSC.

2013


  1. 45. In February 2013 the Parliament passed the Statutory (Appointment to Certain Offices) (Amendment) Act 2013 (No. 28 of 2013). Relevant Legislation Bk tab 4.
  2. To date, the Parliament is yet to take corrective action to repeal the RSA Act 2013 and replace it with a subsequent RSA Act to make it consistent with the Constitutional Amendment Constitutional Amendment (Appointments to Certain Offices) Law 2014.
  3. 47. In 2013 the Parliament passed the Public Service Management Act 2013 repealing the 1995 Act. Corrective action was taken by Parliament in 2014 by repealing the Public Service Management Act 2013 and replaced it with Public Service Management Act 2014, thereby rendering it consistent with Amendment (Appointments to Certain Offices) Law 2014. Under this new Act, the Ministerial Executive Committee (MEAC) was created under Section 28 of the Public Service Management Act 2014 thereby rendering it consistent with Section 191 of the Constitution.

2014


Proposed Law: Constitutional Amendment (Appointment of Certain Offices) Law 2013 and enactment of Constitutional Amendment (No. 38) (Appointment of Certain Offices) Law 2014


  1. The process to enact the Constitutional Amendment (No. 38) (Appointment of Certain Offices) Law 2014 commenced in March 2013 and completed in May 2015.
  2. The Speaker published in the National Gazette No G92 of 7 March 2013 the notice of a proposed law to alter the Constitution by way of Constitutional Amendment (Appointments to Certain Offices) Law 2013. The proposed law intended to amend Sections 193 and 208B of the Constitution. See page 455 of Vol 2 of the Application Book.
  3. On 12 March 2013 the proposed law was circulated to each Member of Parliament by slipping it under the Parliament office doors of each Member of Parliament. A copy of the proposed law that was circulated to MPs is not annexed to the affidavit of the Clerk of Parliament (Court Exhibit “H”), apart from reproducing extracts from a register kept by the Clerk showing the proposed law was circulated to members. However, parties agree a copy of the proposed law would have been circulated to MPs.
  4. On 15 May 2013 the Parliament conducted the First Reading of the Constitutional Amendment (Appointment of Certain Offices) Law 2013. The proposed law was referred to the Permanent Parliamentary Committee on Constitutional Laws and Acts and Subordinate Legislation. See copy of the Hansard in the Application Book Vol. 2 pages 473 – 475, Applicant’s affidavit Annexure “PK 8”.
  5. On 24 May 2013 a motion was moved to discharge the order of the day No. 38 to delete on Notice Paper Notice No.38 that related to the proposed law Constitutional Amendment (Appointment of Certain Offices) Law 2013.
  6. On 12 September 2013 the Speaker published in the National Gazette No G395 on 12 September 2013 the same proposed law Constitutional Amendment (Appointment of Certain Offices) Law 2013 to alter the same Sections 193 and 208B of the Constitution. This notice is annexed to the Applicant’s affidavit Annexure “PK 6” appearing on, pages 457 – 464 of the Application Book Vol. 2. The Gazettal Notice is not dissimilar to National Gazette No G92 of 7 March 2013.
  7. This same proposed law was circulated to each Member of Parliament on 31 October 2013 by slipping a copy under each Member’s Parliament office door.
  8. On 14 November 2013, the Parliament conducted the First Reading of the Constitutional Amendment (Appointment of Certain Offices) Law 2013. The proposed law was again referred to the Permanent Parliamentary Committee on Constitutional Laws and Acts and Subordinate Legislation. See copy of the Hansard in the Application Book Vol. 2 pages 477 – 478, Applicant’s affidavit Annexure “PK 9”.
  9. On 26 November 2013, the Second Reading and the first opportunity for debate and first vote on the Constitutional Amendment (Appointments to Certain Offices) Law 2013 was conducted. The question was put and the vote was taken, the Ayes 85, and the Noes 0. See copy of the Hansard in the Application Book Vol. 2 pages 480 – 487, Applicant’s affidavit Annexure “PK 10”.
  10. On 19 February 2014 the Third Reading and the second required opportunity for debate and for the second vote on the Constitutional Amendment (Appointments of Certain Offices) Law 2013 was conducted. The law was passed, the Ayes 92 and the Noes 0. See copy of the Hansard in the Application Book Vol. 2 pages 497, 505 – 510, Applicant’s affidavit Annexure “PK 11”.Constitutional Amendment (No. 38) (Appointment of Certain Offices) Law 2014 (certified on 14.05.14); and (Relevant Legislation Bk, tab 1)

Organic Law on Provincial Governments and Local-Level Governments (Amendment) (No. 13) Law 2013


  1. The Speaker published in the National Gazette No G92 of 7 March 2013 the notice of a proposed law to amend Section 73 of the Organic Law on Provincial Governments and Local-level Governments by way of “Organic Law on Provincial Governments and Local-level Governments (Amendment) (No. 13) Law 2013”. See page 455 of Vol 2 of the Application Book.
  2. A copy of this proposed law was circulated to each Member of Parliament on 12 March 2013.
  3. On 15 May 2013 the Parliament conducted the First Reading of the Organic Law on Provincial Governments and Local-level Governments (Amendment) (No. 13) Law 2013. The proposed law was referred to the Permanent Parliamentary Committee on Constitutional Laws and Acts and Subordinate Legislation. See copy of the Hansard in the Application Book Vol. 2 pages 473 – 475, Applicant’s affidavit Annexure “PK 8”.
  4. On 12 September 2013 the Speaker published in the National Gazette No G395 of 12 September 2013 the proposed Organic Law on Provincial Governments and Local-level Governments (Amendment) (No. 13) Law 2013. The proposed law intended to amend Section 73 of the principal Organic Law. Application Book Vol 2, page 460. This Gazettal notice is a republication of Gazettal Notice No G92 of 7 March 2013.
  5. The proposed law was circulated to each Member of Parliament on 31 October 2013 by slipping a copy under each of the Member’s Parliament office door.
  6. On 26 November 2013 the Second Reading and the first opportunity for debate and the first vote on the Organic Law on Provincial Governments and Local-level Governments (Amendment) (No. 13) Law 2013 was conducted. The first vote was taken and the Ayes 86 and Noes 0. See copy of the Hansard in the Application Book Vol. 2 pages 480, 488 – 490, Applicant’s affidavit Annexure “PK 10”.
  7. On 19 February 2014 the Third Reading and the Second required opportunity for debate and for the second vote on the Organic Law on Provincial Governments and Local-level Governments (Amendment) (No. 13) Law 2013 was conducted. It was passed, the Ayes 92 and the Noes 0.See copy of the Hansard in the Application Book Vol. 2 pages 497, 510 – 512, Applicant’s affidavit Annexure “PK 11”.Organic Law on Provincial Governments and Local-level Governments (Amendment) (No 13) Law 2014 (certified on 14.05.14); and (Relevant Legislation Bk, tab 2)

Organic Law on Provincial Governments and Local-Level Governments (District Development Authority) (Amendment) Law 2013


  1. The Speaker published a notice in the National Gazette No G407 dated 19 September 2013 the proposed law to amend the Organic Law on Provincial Governments and Local-level Governments (District Development Authority Act) Law 2013. This proposed law intended to amend Sections 3, 25, 72, 74 and 105 and repeal 33A of the principal Organic Law. See the Applicant’s affidavit Annexure “PK 7” in the Application Book Vol. 2 pages 470 – 471.
  2. On 31 October 2013 the proposed law was circulated to each Member of Parliament by slipping a copy under the Parliament office doors of each Members of Parliament.
  3. On 13 November 2013 the Parliament conducted the First Reading of the Organic Law on Provincial Governments and Local-level Governments (District Development Authority) (Amendment) Law 2013. The proposed law was referred to the Permanent Parliamentary Committee on Constitutional Laws and Acts and Subordinate Legislation. See Application Book Vol. 2 pages 514 – 516, mis-positioned towards the end of Tab 18. ]
  4. On 26 November 2013, the first opportunity for debate and the opportunity for the first vote on the proposed Organic Law on Provincial Governments and Local-level Governments (District Development Authority) (Amendment) law 2013 was conducted. The result of the first vote was, the Ayes 92 and the Noes 0. See Application Book Vol 2. pages 480 – 481 and 491 – 495, Applicant’s affidavit Annexure “PK 10”.
  5. On 19 February 2014 the Third Reading and the second required opportunity for debate and for the second vote on the Organic Law on Provincial Governments and Local-level Governments (District Development Authority) (Amendment) Law 2013 was conducted. It was passed, the Ayes 91 and the Noes 0. See Application Book Vol 2. pages 497 – 503.Organic Law on Provincial Governments and Local-level Governments (District Development Authority) (Amendment) Law 2014(Relevant Legislation Bk, tab 3)
  6. 70. In 2014 the Parliament passed the following Acts:
  7. This PSMA 2014 repealed the PSMA 2013. The PSMA 2014 under Section 28 established the Ministerial Executive Appointment Committee to implement Section 193 of the Constitution.

Regulations


  1. The following regulations have been made in 2014:
  2. These amendments to the Constitution do not affect the PSC’s involvement in the appointment, suspension and revocation of appointment of the Police Commissioner, the Commander of the Defence Force, Boundaries Commissioners, Chief Executive of the National Broadcasting Corporation and heads of State Services.

2014 – 2016


  1. Amendments to Regulations No 7 of 2014 made pursuant to Section 28 of the PSMA 2014 and Regulation No 9 of 2014 made pursuant to Section 61 of the PSMA 2014were made to regulate the manner in which the PSC is to adjudicate on appointments, etc. of Heads of Government Departments and Provincial Administrators could not be implemented due to firstly the refusal of the PSC to cooperate with the consultation process initiated by the NEC Decisions and then the Interim Orders subsequently obtained by the PSC on 26 July 2016.
  2. Regulations designed to enable the District Development Authorities to operate within the confines of the Constitution and the Organic Law in compliance with the PSMA 2014 could not be processed due to the Interim Orders obtained by the Applicant on 26 July 2016.
  3. The Applicant did declare in writing that the MEAC created by Section 28 of the PSMA 2014 is an illegal body and has refused to comply with the said PSMA 2014 and Regulations since 1st October 2014.
  4. Cabinet decision No 147/2016 of June 2016 could not be implemented as the Interim Orders obtained by the applicant on 26 July 2016 prevented the promotion of the proposed new PSC Act to cater for the independence of the Commission and to remove its role and functions from the PSMA 2014 from the jurisdiction of the Secretary of DPM.
  5. When the Applicant filed this proceeding the PSC has been reluctant to implement the Regulations pending the final determination of the issues in this proceeding.
  6. The Interveners counsel produced a summary of the legislative process that commenced in 2013 and concluded in 2014 referred to above, which I reproduce at Schedule "B" hereto ( see pages 17-21).

SUMMARY & CONCLUSIONS


  1. I confine my summary of findings to the amendments to the Constitution and the Organic Laws under the two main issues in the trial.
  2. The summary and conclusions are derived from the agreed facts and inferences drawn from them; and, from a further consideration of the evidence before the Court.
  3. The legislative process to enact the laws in question commenced in March 2013 and were completed in May 2015.

Procedural issues


Constitutional Amendment (Appointment of Certain Offices) Law 2013


  1. The proposed law (Constitutional Amendment (Appointment of Certain Offices) Law 2013) was gazetted twice. The proposed law was first gazetted on 7 March 2013. On 15 May 2013, the bill was presented to Parliament on the first reading. The bill was referred to the Permanent Parliamentary Committee on Constitutional Laws, Acts and Subordinate Legislation (the relevant Parliamentary Committee) for consideration and reporting. On 24 May 2013, Parliament discharged further proceedings on the bill after it was withdrawn. No question arises from this withdrawal.
  2. On the second occasion, the same proposed law (Constitutional Amendment (Appointment of Certain Offices) Law 2013) was re-gazetted on 12 September 2013. The gazettal notice was the same or similar to the one gazetted on 7 March 2013. No impropriety or irregularity is alleged in respect of this repeat gazettal of the same proposed law. I find that the proposed law was duly gazetted.
  3. On 31st October 2013, one (1) month and nineteen (19) days later, the proposed law was circulated to members of Parliament. The Clerk of Parliament caused the proposed law to be circulated by an officer who slipped a copy of the proposed law under the Parliament office doors of each Member of Parliament. No question has arisen as to the propriety or irregularity of this method of “circulation”. I find that the proposed law was duly circulated to each Member of Parliament in terms of the method of delivery employed.
  4. On 14 November 2013, two (2) months and two (2) days after the gazettal and thirteen (13) days after the circulation of the proposed law to members of Parliament, the bill was read for the first time in Parliament. Sir Puka Temu, Minister for Public Service, presented the bill. The Parliament referred the bill to the Permanent Parliamentary Committee on Constitutional Laws, Acts and Subordinate Legislation for consideration and reporting.
  5. Twelve (12) days after the presentation of the proposed law, on 26 November 2013, the second reading and the first opportunity for debate and vote occurred. The Hon. Solan Mirisim, Chairman of the Permanent Parliamentary Committee on Constitutional Laws, Acts and Subordinate Legislation, presented the Committee report. Sir Puka Temu moved the motion for a vote to be taken. Eighty-five (85) voted in favour and zero (O) against.
  6. Two (2) months 24 days from the second reading, on 19 February 2014, the third and final reading and second opportunity for debate and vote occurred. Those who spoke on the bill were Sir Puka Temu and Solan Mirisim. Ninety-two (92) MPs voted in favour and zero (0) against. The bill was passed.
  7. On 14th May 2015, two (2) months and twenty-six (26) days from the second and third vote, the Speaker certified the amendment law. The Constitutional Amendment (Appointment of Certain Offices) Law 2014 came into force on that day.

Organic Law on Provincial Governments and Local-Level Governments (Amendment) (No. 13) Law 2013


  1. On 7th March 2013, the proposed law was gazetted. No question arises as to the impropriety or irregularity of this gazette.
  2. On 12 March 2013, the proposed law was circulated to MPs by slipping a copy under the door of each MPs Parliament office.
  3. On 15 May 2013, the first reading of the bill occurred. Sir Puka Temu, Minister for Public Service presented the bill in Parliament. The bill was referred to the Permanent Parliamentary Committee on Constitutional Laws, Acts and Subordinate Legislation for consideration and reporting.
  4. Thereafter the bill was not progressed to the second and third reading. This process was aborted. No question arises with regard to this process.
  5. On 12 September 2013, the proposed law was gazetted. It is unclear from the agreed facts if this was the same proposed law that was gazetted on 7 March 2013 and first reading was conducted on 15 May 2013. If it was the same, no impropriety or irregularity is alleged in respect of this repeat gazettal of the same proposed law. I find that the proposed law was duly gazetted.
  6. On 31st October 2013, one (1) month and nineteen (19) days later, the proposed law was circulated to members of Parliament. The Clerk of Parliament caused the proposed law to be circulated by an officer who slipped a copy of the proposed law under the Parliament office doors of each Member of Parliament. No question has arisen as to the propriety or irregularity of this method of “circulation”. I find that the proposed law was duly circulated to each Member of Parliament in terms of the method of delivery employed.
  7. The first reading of this proposed law already took place on 15 May 2013 (refer to paragraph 87, supra.)
  8. On 26 November 2013, two (2) months and fourteen (14) days after the gazettal and twenty-five (25) days after the bill was circulated, and six (6) months and eleven (11) days after the first reading of the first proposed law, the second reading and the first opportunity for debate and vote occurred. The Hon. Solan Mirisim, Chairman of the relevant Parliamentary Committee on Bills, presented the Committee report. The Prime Minister Peter O'Neill and Peter Ipatas spoke during debate. The Prime Minister put the motion for the vote to be taken. Eighty-six (86) voted in favour and zero (O) against.
  9. Two (2) months 24 days from the second reading, on 19 February 2014, the third and final reading and second opportunity for debate and vote occurred. Solan Misirim spoke. Prime Minister Peter O'Neill spoke and moved for the vote to be taken. Ninety-one (91) MPs voted in favour and zero (0) against. The bill was passed.
  10. On 14th May 2015, two (2) months and twenty-six (26) days from the second reading and vote, the Speaker certified the amendment law. The Organic Law on Provincial Governments and Local-Level Governments (Amendment) (No. 13) Law 2014 came into force on that day.

Organic Law on Provincial Governments and Local-Level Governments (District Development Authority) (Amendment) Law 2013


  1. On 19th September 2013, the proposed law was gazetted. No question arises as to the impropriety or irregularity of this gazette. I find that the proposed law was duly gazetted.
  2. On 31 October 2013, the proposed law was circulated to MPs by slipping a copy under the door of each MPs Parliament office. No question has arisen as to the propriety or irregularity of this method of “circulation”. I find that the proposed law was duly circulated to each member.
  3. On 13 November 2013, two (2) months and seven(7) days after the gazettal and twelve (12) days after the circulation, the first reading of the bill occurred. Prime Minister Peter O'Neill presented the bill. The bill was referred to the Permanent Parliamentary Committee on Constitutional Laws, Acts and Subordinate Legislation for consideration and reporting.
  4. On 26 November 2013, twelve (12) days after the first reading and twenty-five (25) days after the first reading, the second reading and the first opportunity for debate and vote occurred. The Hon. Solan Mirisim, Chairman of the relevant Parliamentary Committee on Bills, presented the Committee report. Prime Minister Peter O'Neill spoke and put the motion for the vote to be taken. Ninety-two (92) MPs voted in favour and zero (O) against.
  5. On 19th February 2014, the third and final reading and second opportunity for debate and vote occurred. The Hon. Solan Mirisim, Chairman of the relevant Parliamentary Committee on Bills, re-presented the Committee report. Prime Minister Peter O'Neill spoke and put the motion for a vote to be taken. Ninety-two (92) MPs voted in favour and zero (0) against. The bill was passed.
  6. On 14th May 2015, the Speaker certified the amendment law. The Organic Law on Provincial Governments and Local-Level Governments (District Development Authority) (Amendment) Law 2014 came into force on that day.

Substantive Issues


  1. The facts found in relation to the substantive issues are as they appear in the Agreed Facts.

__________________


Schedule "A"

Constitutional Issues in the Application


Constitutional Laws Unconstitutional, Invalid and of No Effect


4.25 Each of the then proposed laws: (1) Constitution Amendment (Appointments to Certain Offices) Law 2013; (2) the Organic Law on Provincial Governments and Local-level Governments (Amendment) (No. 13) Law 2013 and (3) the Organic Law on Provincial Governments and Local Level Governments (District Development Authority) (Amendment) Law 2013 respectively were not circulated to each Member of Parliament “not less than one month” before they were formally introduced into the Parliament contrary to Section 14(2)(b) of the Constitution.


4.26 As a result of the failure to comply with Constitution Section 14(2)(b) each of these laws Constitutional Amendment (No. 38) (Appointment of Certain Offices) Law 2014, Organic Law on Provincial Governments and Local- level Government (Amendment) (No. 13) Law2014, and Organic Law on Provincial Governments and Local-level Governments (District Development Authority) (Amendment) Law 2014 is therefore unconstitutional, invalid and of no effect.


4.27 The Constitutional Amendment (No. 38) (Appointment of Certain Offices) Law 2014 is unconstitutional, invalid and of no effect for the Parliament’s failure to allow “opportunity for debate on the merits” within the meaning of Section 14(1) and (2) of the Constitution.


4.28 The Constitutional Amendment (No. 38) (Appointment of Certain Offices) Law 2014 is unconstitutional, invalid and of no effect in that it is inconsistent with the intent and spirit of Part VII.2 Sections 190, 194 and Part V11A Sections 208A and 208B of the Constitution.


4.29 The Organic Law on Provincial Governments and Local-level (Amendment) (No. 13) Law 2014 is unconstitutional, invalid and of no effect for the Parliament’s failure to allow “opportunity for debate on the merits” within the meaning of Section 14(1) and (2) of the Constitution.


4.30 The Organic Law on Provincial Governments and Local-level Governments (Amendment) (No 13) Law 2014 is unconstitutional, invalid and of no effect in that it is inconsistent with the intent and spirit of Part VII.2 Sections 190 - 194 and Part VIIA Sections 208A and 208B of the Constitution.


4.31 The Organic Law on Provincial Governments and Local-level Governments (District Development Authority) (Amendment) Law 2014 is unconstitutional, invalid and of no effect for the Parliament’s failure to allow “opportunity for debate on the merits” within the meaning of Section 14(1) and (2) of the Constitution.


4.32 The RSA (Appointment to Certain Offices) (Amendment) Act 2013 was passed prior to the enabling provision Section 208B of the Constitution was amended by the Constitution Amendment (Appointments to Certain Offices) Law 2014 on 14 May 2014 when the law was certified by the Speaker. The RSA (Appointment to Certain Offices) (Amendment) Act 2013 had no Constitutional basis to be in force prior to the Constitutional amendment was passed and should not be valid because the subsequent Constitutional Amendment does not expressly remedy the error. Therefore it is unconstitutional and invalid.


4.33 If the RSA (Appointment to Certain Offices) (Amendment) Act 2013 is invalid, is any appointment or suspension or revocation of appointment of a Chief Executive Officer or member of the Board or Commission or Committee of a RSA made under the same Act invalid?


4.34 The Organic Law on Provincial Governments and Local-level Governments (District Development Authority) (Amendment) Law 2014 amended Sections 3, 25, 72, 74 and 105A and repealed Section 33A of the principal Organic Law. The amendment law replaced the then joint District and Budget Priority Committee with the District Development Authority.


Statutory Laws Unconstitutional, Invalid and of No Effect


4.35 The Parliament passed the District Development Authority Act 2014.


(a) Is a District Development Authority, among other things, being a body corporate with perpetual succession characterized as a corporation for all intents and purposes a subject matter authorized by Section 12(4) and Part VIA (Sections 187 A – 187J) of the Constitution?


(b) If the answer to question 4.35(a) is in the negative is the District Development Authority Act 2014 unconstitutional, invalid and of no effect forthwith?


(e) If the answer to question 4.35(a) is in the affirmative, is Section 12(1)(a) of the District Development Authority Act 2004 unconstitutional and invalid in that it is inconsistent with Section 99 Constitution and the principle of separation of powers under the Constitution?


(d) If the District Development Authority Act 2014 is invalid is any appointment made under Section 22 (Chief Executive Officer) of the same Act invalid and of no effect forthwith?

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Schedule “B”

ITEM
TITLE OF PROPOSED CONSTITUTIONAL LAW AMENDMENTS
PUBLICATION IN THE NATIONAL GAZETTE
CIRCULATION TO MEMBERS OF PARLIAMENT
PRESENTATION, FIRST READING AND REFERRAL TO COMMITTEE ON CONSTITUTIONAL LAWS AND ACTS AND SUBORDINATE LEGISLATION
FRIST REQUIRED OPPORTUNITY FOR DEBATE, SECOND READING AND FIRST VOTE
SECOND REQUIRED OPPORTUNITY FOR DEBATE, THIRD READING AND SECOND VOTE

1.
  1. Constitutional Amendment (Appointments to Certain Offices) Law 2013
The proposed Law intended to amend Sections 193 and 208B of the Constitution
Thursday, 7 March 2013
(Application Book page 433 paragraph 30 & page 445 para__?)
12 March 2013
As per Sergeant-at-Arm’s register on distribution-Placed in Member’s Office
15 May 2013
(Application Book page 434 para 50 & 435 & page 474 para 50)

Two months after Circulation
Friday, 24th May 2013- A motion was moved by the Leader of Government Business (Mr James Marape) to discharge order of the day No. 38 standing under the Minister for Public Service (Sir Puka Temu)

Delete Notice No. 38 from the Notice Paper


B. Constitutional Amendment (Appointments to Certain Offices) Law 2013

The proposed Law intended to amend Sections 193 and 208B of the Constitution
Thursday, 12 September 2013

(Application Book page 433 paragraph 50 & page 458 para 30)
31 October 2013
As per Sergeant-at-Arms register on distribution Placed in Member’s office
14 November 2013
(Application Book page 435 para 10 & page 478 para 10

Two weeks after re-circulation
26 November 2013
(Application Book page 435 para 30 & page 482 para 40)

Two months adjournment from 26 November 2013
19 February 2014
(Application Book page 435 para 40 & page 505 para 40)

Passed:19.02.14
Certified:14.5.14

2.
Organic Law on Provincial Governments and Local-Level Governments (Amendment) Law 2013

The proposed Law intended to amend Section 73 of the Organic Law on Provincial Governments and Local Level Governments (“the principle Organic Law”)
Thursday, 7 March 2013
(Application Book page 433 para 50 & page 455 para___?)

Thursday 12th September, 2013 (Application Book page 434 para 10 & page 460 para 10 to 30)
12 March 2013

As per Sergeant-at-Arm’s register on distribution-Placed in Member’s Office
15 May 2013
(Application Book page 436 para 10 & page 475 para 20)

Two months after circulation
26 November 2013
(Application Book page 436 para 30 & page 488 para 40)

Two months adjournment from 26 November 2013
19 February 2014
(Application Book page 436 para 40 & page 510 para 20)

Passed: 19.02.14
Certified: 14.05.14

3.
Organic Law on Provincial Governments and Local -level Governments (District Development Authority) Law 2013

The Proposed Law intended to amend Sections 3,25,72,74 and 105 and repeal Section 33A of the principle Organic Law
Thursday, 19 September 2013
(Application Book page 434 para 20 & page 470 para 10)
31 October 2013
As per Sergeant-at-Arm’s register on distribution-Placed in Member’s Office
13 November 2013
(Application Book page 436 para 50 & page 516 para 20)

Two weeks after circulation and “two months” after Gazettal
26 November 2013
(Application Book page 437 para 20 & page 491 para 10)

Two months adjournment from 26 November 2013
19 February 2014
(Application Book page 437 para 30 & page 498 para 20)

Passed: 19.02.14
Certified: 21.03.14


_________________________________________________________

Nemo Yalo Lawyers: Lawyer for the Applicant

Wagambie Lawyers: Lawyer for the Interveners

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