Reference by the Ombudsman Commission Pursuant to Constitution, Section 19 (1) [2019] PGSC 48; SC1821 (31 May 2019)

SC1821

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REF NO 2 OF 2019

REFERENCE BY THE OMBUDSMAN COMMISSION
PURSUANT TO CONSTITUTION, SECTION 19(1)

RE THE CONSTITUTION, SECTIONS 105 & 187C,
THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS, SECTIONS 177, 271, 281 & 285 &
THE ORGANIC LAW ON PROVINCIAL GOVERNMENTS AND LOCAL-LEVEL GOVERNMENTS, SECTIONS 26 & 34

Waigani: Salika CJ, Cannings J, Dingake J
2019: 28, 31 May

SUPREME COURT – practice and procedure – application to full court of Supreme Court to discharge interim order of a single Judge of Supreme Court – Supreme Court Rules 2012, Order 11, Rule 25.

The Electoral Commission, which is a party to a Constitution, Section 19 Special Reference regarding the conduct of a general election for local-level governments, applied to the full court of the Supreme Court to discharge an interim order made earlier in the proceeding by a single Judge of the Supreme Court. That order had the effect of restraining the Electoral Commission from conducting the proposed general election. The Electoral Commission’s application was opposed by some other parties, including the referrer, the Ombudsman Commission.

Held:

(1) Order 11, Rule 25 of the Supreme Court Rules allows (subject to any express provision to the contrary) any party to any Supreme Court proceeding who is “dissatisfied” with a direction or order of a single Judge of the Supreme Court, to apply to the full court of the Supreme Court to vary or discharge the order or to “make such order as appears just”.

(2) A dissatisfied party may make an application under Order 11, Rule 25 either by notice of motion in accordance with Order 11, Rule 26 (which cross-refers to notices of motion under Order 10) or by application under Order 13, Rule 15 (in which case the application is made in Form 4).

(3) The present application was made under Order 11, Rule 25 and Order 13, Rule 15, in which case it is not an appeal against or a review of the order of the single Judge; rather, it is a hearing de novo on the merits of affirming, discharging or varying the earlier order.

(4) The criteria to be applied in deciding whether to affirm, discharge or vary the earlier order are the same as those applied in making the earlier order: (a) whether the orders sought are consistent with the grant of constitutional powers by designated persons or authorities under the Constitutional Laws; (b) whether there are serious constitutional issues raised in the reference; (c) whether prejudice would be suffered by the referrer or other parties in the performance of their public functions; (d) whether the balance of convenience favours the granting, discharge or variation of the interim orders; (e) whether the status quo should be preserved.

(5) Applying the criteria to the present situation: (a) affirming the order would be inconsistent with the grant of constitutional powers and imposition of constitutional duties on the Electoral Commission to organise and conduct elections for local-level governments; (b) the reference raises serious constitutional issues; (c) no prejudice would be suffered by the referrer, the Ombudsman Commission, if the interim order is discharged; (d) the balance of convenience favours discharging the interim order; (e) discharging the interim order would preserve the status quo as it existed immediately before the interim order was made. Thus, all but (b) – which is a neutral criterion – favour discharging the interim order.

(6) The interim order was discharged with immediate effect.

Cases Cited

The following cases are cited in the judgment:

James Marape v Peter O’Neill (2015) SC1458
National Executive Council v Vele Pat Ila’ava (2014) SC1332
Reference by the Ombudsman Commission (2010) SC1027
Reference by the Ombudsman Commission v Peter O'Neill (2017) SC1565
Reference Pursuant to Constitution Section 19, re the Judicial Conduct Act 2012 (2012) SC1178
ToRobert v ToRobert (2011) SC1130

APPLICATION

This was an application to the full court of the Supreme Court to discharge an interim order in the nature of an injunction made by a single Judge of the Supreme Court.

Counsel

P Koralyo & M Kik, for the referrer, the Ombudsman Commission
S Ranewa, for the first intervener, the Electoral Commission
A Maribu, for the second intervener, the Umi-Atzera Local-level Government
R Saulep, for the third intervener, the East Sepik Provincial Assembly
T Tanuvasa, for the fourth intervener, the Attorney-General

31^st May, 2019

1. BY THE COURT: The Electoral Commission applied to the full court of the Supreme Court to discharge an interim order made by a single Judge of the Supreme Court. That interim order, granted on 25 April 2019, had the effect of restraining the Electoral Commission from conducting the proposed general election for local-level governments.

2. The interim order states:

An interim order is granted to stay the Electoral Commission from issuing the local-level government writs to conduct the 2019 local-level government elections until Supreme Court Reference No 2 of 2019 is heard and determined.

3. The order was granted under Order 3, Rule 2 of the Supreme Court Rules 2012, which provides that where any proceedings within the original jurisdiction of the Supreme Court are pending, a single Judge may make “an interim order to prevent prejudice to the claims of the parties”.

4. The pending proceeding is a Special Reference by the Ombudsman Commission under Section 19 of the Constitution, seeking the Supreme Court’s binding opinion on constitutional questions arising from the alleged delay by the Electoral Commission in organising and conducting a general election for local-level governments.

5. The Special Reference poses various questions, which in summary are:

1. Can a general election for local-level governments be deferred beyond the three-month time limit, after the date of return of the writs for a general election for the National Parliament, set by Section 34 of the Organic Law on Provincial Governments and Local-level Governments?
   
2. What are the consequences for the holding of offices of ward councillors and local-level government presidents if a general election for local-level governments is deferred beyond the three-month period?
   
3. Can a person aggrieved by a delay in the conduct of a general election for local-level governments invoke Section 23 (sanctions) of the Constitution to compel the Electoral Commission to conduct a general election for local-level governments?
   
4. Should the Supreme Court declare that future general elections for local-level governments be conducted in accordance with constitutional requirements?
   

6. Underpinning the Special Reference is the Ombudsman Commission’s proposition that the term of office of local-level governments is required to run no more than three months behind the term of the National Parliament; and as the date fixed for the return of the writs for the last general election for the National Parliament was in mid-2017, the general election for local-level governments should have been conducted in the second half of 2017. That did not happen, and by 21 February 2019 when the Special Reference was filed, it still had not happened. The Constitutional Laws have been thus been breached, extensively, and the constitutional consequences of the breach need to be clarified. That is how we understand the Ombudsman Commission’s case and its motivation for filing the Special Reference.

7. On 1 May 2019 the Electoral Commission, which is a party to the Special Reference, as first intervener, filed the application now before us, to discharge the interim order of 25 April 2019.

8. Supporting the application is the Attorney-General (the fourth intervener). Opposing the application are the Ombudsman Commission (the referrer) and the Umi-Atzera Local-level Government of Morobe Province and the East Sepik Provincial Assembly (the second and third interveners respectively).

ISSUES

9. The Electoral Commission’s application gives rise to these issues:

(1) Does the full court of the Supreme Court have jurisdiction to discharge an interim order of a single Judge of the Supreme Court?

(2) What is the nature of an application to discharge an interim order of a single Judge of the Supreme Court?

(3) What considerations are to be taken into account in determining whether to discharge an interim order of a single Judge of the Supreme Court?

(4) Should the interim order of 25 April 2019 be discharged?

1 DOES THE FULL COURT OF THE SUPREME COURT HAVE JURISDICTION TO DISCHARGE AN INTERIM ORDER OF A SINGLE JUDGE OF THE SUPREME COURT?

10. The parties agree that the full court (the Supreme Court as constituted by three or more Judges under Section 161(2) of the Constitution) has jurisdiction. Order 11, Rule 25 of the Supreme Court Rules allows (subject to any express provision to the contrary) any party to any Supreme Court proceeding who is “dissatisfied” with a direction or order of a single Judge of the Supreme Court, to apply to the full court of the Supreme Court to vary or discharge the order or to “make such order as appears just”.

11. A dissatisfied party may make an application under Order 11, Rule 25 either by notice of motion in accordance with Order 11, Rule 26 (which cross-refers to notices of motion under Order 10) or by application under Order 13, Rule 15 (in which case the application is made in Form 4).

12. The present application is properly regarded as made under Order 11, Rule 25 and Order 13, Rule 15.

2 WHAT IS THE NATURE OF AN APPLICATION TO DISCHARGE AN INTERIM ORDER OF A SINGLE JUDGE OF THE SUPREME COURT?

13. Is the application to discharge an interim order of a single Judge an appeal against the single Judge’s order? Or a review of that order? Or an application made de novo?

14. It is (unless the procedure in Order 11, Rule 26 is invoked) the latter. It is tantamount to a fresh application. The applicant is not obliged to persuade the Court that the earlier order of the single Judge was made in error or that there has been a change in circumstances or that the single Judge was misled. This is settled law (ToRobert v ToRobert (2011) SC1130, Reference Pursuant to Constitution Section 19, re the Judicial Conduct Act 2012 (2012) SC1178, National Executive Council v Vele Pat Ila’ava (2014) SC1332, James Marape v Peter O’Neill (2015) SC1458, Reference by the Ombudsman Commission v Peter O'Neill (2017) SC1565).

3 WHAT CONSIDERATIONS ARE TAKEN INTO ACCOUNT IN DETERMINING WHETHER TO DISCHARGE AN INTERIM ORDER OF A SINGLE JUDGE OF THE SUPREME COURT?

15. As the application to discharge the earlier order is a hearing de novo, the same considerations taken into account when determining the application for the interim order, are applied when deciding whether to discharge the earlier order. The Supreme Court in Reference by the Ombudsman Commission (2010) SC1027 developed a special set of criteria to be applied in determining applications for interim orders in Constitution Section 19 Special References, namely:

(a) whether the orders sought are consistent with the grant of constitutional powers by designated persons or authorities under the Constitutional Laws;

(b) whether there are serious constitutional issues raised in the reference;

(c) whether prejudice would be suffered by the referrer or other parties in the performance of their public functions;

(d) whether the balance of convenience favours the granting, discharge or variation of the interim orders;

(e) whether the status quo should be preserved.

4 SHOULD THE INTERIM ORDER OF 25 APRIL 2019 BE DISCHARGED?

16. Applying the required criteria to the present situation:

(a) affirming the order would be inconsistent with the grant of constitutional powers and imposition of constitutional duties on the Electoral Commission to organise and conduct elections for the legislative arms of local-level governments;

(b) the reference raises serious constitutional issues;

(c) no prejudice would be suffered by the referrer, the Ombudsman Commission, if the interim order is discharged, whereas there is sufficient evidence before us to show that the Electoral Commission has already devoted substantial sums of public money on preparatory work for the proposed 2019 general election for local-level governments and will be substantially prejudiced in terms of its ability to discharge its constitutional functions if there is further uncertainty as to its plans, arrangements and logistics for the election;

(d) while we acknowledge the possibility that the result of the Special Reference might be a declaration that the 2019 general election for local-level governments is constitutionally invalid, which could render the election a waste of resources, we consider that that result is not a likely outcome (and it is not an outcome sought by the terms of the questions constituting the Reference), and we have also taken account of the fact that to delay the election any longer will only aggravate the constitutional violation that has already arguably occurred, we thus consider that the balance of convenience favours discharging the interim order;

(e) discharging the interim order would preserve the status quo as it existed immediately before the interim order was made.

Thus, except for (b) – which is a neutral criterion – application of the criteria favour discharging the interim order.

CONCLUSION

17. We will discharge the interim order of 25 April 2019. We note that on the same day that the order was made the writs for the 2019 local-level government election were issued by the Minister for Inter-government Relations under Section 271 of the Organic Law on National and Local-level Government Elections, which fixed the date for the return of the writs as on or before 26 July 2019. The dates fixed in those writs for nominations and polling might need to be amended. Those are matters for the Minister to consider, acting with and in accordance with the advice of the Electoral Commission.

18. As all parties to these proceedings are constitutional institutions or governmental bodies it is appropriate that they bear their own costs.

ORDER

1. The application filed 1 May 2019 by the first intervener for discharge of the order of 25 April 2019 is granted.
   
2. The order of 25 April 2019 is discharged forthwith.
   
3. The parties shall bear their own costs of the hearing of the application.
   

____________________________________________________________
Counsel to the Commission: Lawyer for the Referrer
Kawat Lawyers: Lawyers for the First Intervener
Dawidi Lawyers: Lawyers for the Second Intervener
Saulep Lawyers: Lawyers for the Third Intervener
Solicitor-General: Lawyer for the Fourth Intervener