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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
S.C.A. NO. 148 OF 2015
In re Application pursuant to Constitution Section 18(1)
BETWEEN:
APPLICATION BY DR PHILIP KEREME,
CHAIRMAN OF THE PUBLIC SERVICES 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, MINISTER FOR PUBLIC SERVICE
Fourth Intervener
Waigani: Gavara-Nanu & Batari JJ
2017: 31st July; 7th & 10th August
2019: 28th March
SUPREME COURT – Original jurisdiction- Application under Section 18 (1) of the Constitution – Validity of Constitutional Amendments - Whether procedural requirements for amendments to the Constitution complied with - Whether Constitutional amendments validly done - Constitution, ss 14(2), s 193, s 208B
Facts
This is an application brought pursuant to s.18 (1) of the Constitution by Dr Phillip Kereme, the Chairman of the Public Services Commission (PSC) on behalf of the PSC. The application involves the interpretation and application of provisions of ss. 12, 14, 99, Part VIA (ss. 187A 187J), 190, 192, 193 and 208B of the Constitution. The Applicant seeks declarations that on a proper interpretation and application of these Constitutional Law provisions, certain statutory enactments are inconsistent with those provisions and are therefore invalid. Those statutory enactments 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.
The application raises both substantive and procedural issues. The substantive issue is whether the amendments to ss. 193 and 208B of the Constitution are valid. The amendments to the statutes are consequential. The procedural issue is whether the amendments to ss. 193 and 208B of the Constitution complied with the requirements of s. 14 (2) (b) and whether the requirements of s. 14 (2) (b) are mandatory.
Held
1. Conveniently, the Court must decide the procedural issue under s. 14 (2) (b) of the Constitution first because if the procedural requirements under s. 14 (2) (b) of the Constitution were not complied with when amending ss. 193 and 208B of the Constitution, then those amendments and the consequential amendments to the statutes mentioned above would be invalid.
2. Requirements of s. 14 (2) (b) were not complied with when amending ss. 193 and 208B of the Constitution. The requirements of s. 14 (2) (b) of the Constitution are mandatory and the Courts have no power to strike down the mandatory nature of s. 14 (2) (b). The minority view in Isidore Kaseng v. Rabbie Namaliu & Ors (No.1) [1995] PNGLR 381, followed and adopted as the correct law.
3. The mandatory procedural requirements of s. 14 (2) (b) of the Constitution not being complied with when amending ss. 193 and 208B of the Constitution, those amendments and the consequential amendments to the statutes mentioned above are declared invalid.
Cases Cited
Application by Dr. Philip Kereme (2017) SC1600
Geno & Nama v. O’Neill and Speaker of Parliament (2017) SC1617
In re Constitutional Amendment Law 2008, Reference by the Ombudsman Commission [2013] SC1302
Isaac Lupari v. Sir Michael Somare MP – Prime Minister & Chairman of the National Executive Council & Ors (2014) SC1392
Isidore Kaseng v. Rabbie Namaliu (No. 1) [1995] PNGLR 481
National Capital Limited v. Loi Bakani, Governor, Bank of Papua New Guinea & Ors (2014) SC1392
Reference by the Ombudsman Commission; Re Section 19 of the Constitution [2010] SC1027
SCR No. 2 of 1982; Re Organic Law [1982] PNGLR 214
SCR N0. 3 of 1984; Re Constitutional Alterations [1984] PNGLR 374
Special Reference by the Ombudsman Commission (2010) SC1027
Titi Christian v. Rabbie Namaliu (1996) SC1583
Counsel:
N Yalo, for the Applicant
L Kandi, for the Interveners
28th March, 2019
The application
The Constitutional Amendments in question
193. Appointments to certain offices.
(1) This section applies to and in respect of the following offices and positions:
(a) all offices in the National Public Service the occupants of which are directly responsible to the National Executive Council or to a Minister; and
(b) the offices of the members of the Boundaries Commission; and
(c) the office the occupant of which is responsible for the administration of the Government broadcasting service, or, if that responsibility rests with a board or commission, the chairman or president of the board or commission; and
(d) the offices of the persons (including members of boards or commissions) responsible for the administration of any of the State
Services; and
(e) the office of Commissioner of Police; and
(f) the office of Commander of the Defence Force; and
(g) the office of Secretary to the National Executive Council; and
(h) such other offices and positions as are prescribed by an Act of the Parliament for the purpose, other than the offices of the members of the Public Services Commission.
(1A) All substantive appointments to which Subsection (1)(a),(g) and (h) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council from a list of persons recommended by the Public Services Commission following procedures prescribed by or under an Act of the Parliament.
(IB) All temporary appointments to offices to which Subsection (1)(a), (g) or (h) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council in accordance with a recommendation by the Public Services Commission following procedures prescribed by or under an Act of the Parliament.
(IC) The revocation of appointment of persons appointed under Subsection IA) or (IB) shall be made by the Head of State, acting with, and in accordance with a recommendation by the Public Services Commission following procedures prescribed by or under an Act of the Parliament. (Underlining is our emphasis showing amended provisions.
(2) All appointments (whether temporary or substantive) to offices to which Subsection (1)(b), (c) and (e) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after consultation with the Public Services Commission and any appropriate Permanent Parliamentary Committee, and a report concerning each of them shall be given to the Parliament by the responsible Minister as soon as possible after it has been made.
(3) All appointments (whether temporary or substantive) to which Subsection (1) (d) and (f) apply and such other offices and positions as are prescribed by an Act of the Parliament for the purpose of this subsection, shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after consultation with the Public Services Commission.
(4) An Act of the Parliament may make provision for and in respect of a temporary appointment to an office to which this section applies until such time as it is practicable to make an appropriate substantive appointment in accordance with Subsection (2).
193. Appointments to certain offices.
(1) This section applies to and in respect of the following offices and positions:
(a) all offices in the National Public Service the occupants of which are directly responsible to the National Executive Council or
to a Minister; and
(b) the offices of the members of the Boundaries Commission; and
(c) the office the occupant of which is responsible for the administration of the Government broadcasting service, or, if that
responsibility rests with a board or commission, the chairman or president of the board or commission; and
(d) the offices of the persons (including members of boards or commissions) responsible for the administration of any of the State
Services; and
(e) the office of Commissioner of Police; and
(f) the office of Commander of the Defence Force; and
(g) the office of Secretary to the National Executive Council; and
(h) such other offices and positions as are prescribed by an Act of the Parliament for the purpose, other than the offices of the
members of the Public Services Commission.
(1A) All substantive appointments to offices to which Subsection (1)(a), (g) and (h) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council from a list of persons selected and recommended through merit based selection and appointment procedures prescribed by or under an Act of the Parliament.
(1B) All temporary appointments to offices to which Subsection (1)(a), (g) or (h) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with procedures prescribed by or under an Act of the Parliament.
(1C) The revocation of appointment of persons appointed under Subsection (1A) or (1B) shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with procedures prescribed by or under an Act of the Parliament.
(1D) The suspension from office of persons appointed under Subsection (1A) or (1B) shall be made by the Head of State, acting with, and in accordance with, procedures prescribed by or under an Act of the Parliament.
(1E). Notwithstanding the procedures provided by an Act of Parliament under Subsection (1A) to (1D), the Public Services Commission shall exercise its powers under Section 191 from time to time to review the appointments made under Section 193.
(2) All appointments (whether temporary or substantive) to offices to which Subsection (1)(b), (c), and (e) apply shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after consultation with the Public Services Commission and any appropriate Permanent Parliamentary Committee, and a report concerning each of them shall be given to the Parliament by the responsible Minister as soon as possible after it has been made.
(3) All appointments (whether temporary or substantive) to which Subsection (1)(d) and (f) apply and such other offices and positions as are prescribed by an Act of the Parliament for the purpose of this subsection, shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after consultation with the Public Services Commission.
(4) An Act of the Parliament may make provision for and in respect of a temporary appointment to an office to which this section applies until such time as it is practicable to make an appropriate substantive appointment in accordance with Subsection (2). (underlining is our emphasis showing amended provisions).
208B. APPOINTMENT TO CERTAIN OFFICES OF REGULATORY STATUTORY AUTHORITIES
(1) This section applies to and in respect of the f ollowing offices and positions-
(a) All offices of chief executive officers of Regulatory Statutory Authorities; and
(b) All offices of non ex-officio members of Boards of Regulatory Statutory Authorities; and
(c) Such other offices and positions as are prescribed by an Act of Parliament for the purpose.
(2) All appointments (whether temporary or substantive) to offices which Subsection (1)(a) applies shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after considering recommendations from the relevant Minister, acting on the advice of the relevant Board in accordance with the recommendation from the Public Services Commission, following procedures prescribed by an Act of the Parliament.
(3) All temporary appointments (whether temporary or substantive) to offices to which Subsection 1 (a) applies shall be made by the National Executive Council given after considering recommendations from the relevant Minister, acting on the advice of the relevant Board in accordance with the recommendation from the Public Services Commission, following procedures prescribed by an Act of Parliament.
(4) The revocation of appointment of persons appointed under Subsection (1)(a) shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after considering recommendations from the relevant Minister, acting on the advice of the relevant Board in accordance with recommendation from the Public Services Commission, following procedures prescribed by an Act of Parliament.
(5) The suspension from office of persons appointed under Subsection (1)(a) shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after considering recommendations from the relevant Minister, acting on the advice of the relevant Board in accordance with recommendation from the Public Services Commission, following procedures prescribed by an Act of Parliament.
6. All appointments (whether temporary or substantive) to offices which Subsection (1)(b)applies shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after considering recommendations from the relevant Minister following procedures prescribed by an Act of Parliament.
12. After the amendment, s. 208B read as follows:
208B. Appointments to certain Offices of Regulatory Statutory Authorities.
(1) This section applies to and in respect of the following offices and positions:—
(a) all offices of chief executive officers of Regulatory Statutory Authorities; and
(b) all offices of non ex-officio members of Boards of Regulatory Statutory Authorities; and
(c) such other offices and positions as are prescribed by an Act of Parliament for the purpose.
(2) All appointments (whether temporary or substantive) to offices to which Subsection (1)(a) applies shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council, given after considering recommendations from the relevant Minister, acting on the advice of the relevant Board, following procedures prescribed by an Act of Parliament.
(3) All temporary appointments (whether temporary or substantive) to offices to which Subsection (1)(a) applies shall be made by the National Executive Council given after considering recommendations from the relevant Minister, acting on the advice of the relevant Board, following procedures prescribed by an Act of Parliament.
(4) The revocation of appointments of persons appointed under Subsection (1)(a) shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after considering recommendations from the relevant Minister, acting on the advice of the relevant Board, following procedures prescribed by an Act of Parliament.
(5) The suspension from office of persons appointed under Subsection (1)(a) shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after considering recommendations from the relevant Minister, acting on the advice of the relevant Board following procedures prescribed by an Act of Parliament.
(6) All appointments (whether temporary or substantive) to offices to which Subsection (1)(b) applies shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after considering recommendations from the relevant Minister following procedures prescribed by an Act of Parliament. (underlining is our emphasis showing amended provisions).
Issues
13. Constitutional Amendment (No. 38) (Appointment of Certain Offices) Law 2014, amended ss. 193 and 208B of the Constitution. The rest of the amendments to the other statutes are consequential. There is a threshold procedural issue that relates to amendments to ss.193 and 208B of the Constitution that may determine the application. It is for this reason that we deal with Constitutional Amendment (No. 38) (Appointment of Certain Offices) Law 2014 first.
14. The procedural issue relates to compliance with the formal requirements of s 14 (2) (b) of the Constitution which are mandatory. See, SCR No. 2 of 1982; Re Organic Law [1982] PNGLR 214; SCR No. 3 of 1984; Re Constitutional Alterations [1984] PNGLR 374 and Isidore Kaseng v. Rabbie Namaliu & Ors [1995] PNGLR 481.
15. Section 14 is in these terms:
14. Making of alterations to the Constitution and Organic Laws.
(1) Subject to Sections 12(3) (Organic Laws) and 15 (urgent alterations), a proposed law to alter this Constitution, or a proposed Organic Law, must be supported on a division in accordance with the Standing Orders of the Parliament by the prescribed majority of votes determined in accordance with Section 17 ("prescribed majority of votes") expressed on at least two occasions after opportunity for debate on the merits.
(2) Subject to Section 15 (urgent alterations), the opportunities for debate referred to in Subsection (1) must have been—
(a) during different meetings of the Parliament; and
(b) separated in time by at least two months, and the proposed law must be published by the Speaker in full in the National Gazette, and circulated, in accordance with the Standing Orders of the Parliament, to all members of the Parliament not less than one month before it is formally introduced into the Parliament.
(3) Amendments to a proposed law to amend this Constitution or a proposed Organic Law shall not be moved unless they have been circulated to members of the Parliament before the end of the meeting of the Parliament at which the first opportunity for debate referred to in Subsection (1) occurs.
(4) Subject to Subsection (6), in his certificate given under Section 110 (certification as to making of laws), the Speaker must certify that the requirements of Subsections (1), (2) and (3) or Section 15 (urgent alterations), as the case may be, have been complied with.
(5) The certificate referred to in Subsection (4) shall state—
(a) the date on which each vote was taken; and
(b) in relation to each vote—
(i) the number of seats in the Parliament at the time; and
(ii) the respective numbers of members of the Parliament voting for and against the proposal, and where the requirements of Subsection (2) were waived under Section 15 (urgent alterations) for and against the motion for the waiver, and is, in the absence of proof to the contrary, conclusive evidence of the matter so stated.
(6) Unless the Parliament decides otherwise in any particular case, Subsection (1) does not apply where the Speaker, after consultation with the Chief Justice or a Judge nominated by the Chief Justice for the purpose, certifies that the proposed law—
(a) does not affect the substance of any provision to be altered by it; or
(b) is designed to correct a self-evident error or omission; or
(c) is merely incidental to or consequential on some other alteration of this Constitution or of any other law, and such a law may be made in the same way as Acts of the Parliament.
(7) The Supreme Court may, on the application of any person made within four weeks after the date of a certificate under Subsection (6) or such further time as a Judge, on application made within that period, considers reasonable in the particular circumstances, disallow the certificate, but otherwise the certificate is conclusive. (underlining is ours).
16. The procedural questions are two-fold. The first is whether Constitutional Amendment No 38 was passed without complying with the mandatory requirement of s. 14 (2) (a) and (b) of the Constitution to circulate the proposed amendment to each Member of Parliament “not less than one month before it is formally introduced into the Parliament”. The second question is whether Constitutional Amendment No 38 was passed without complying with the mandatory requirement of s. 14 (2) (a) and (b) of the Constitution that there must have been opportunity for debate at different meetings “separated in time by at least two months”.
Proof of Constitutional Claims brought under s 18(1) of the Constitution
17. In Geno & Nama v O’Neill and Speaker of Parliament (2017) SC 1617, this Court settled the principles in the following terms:
“Proof of the Claim
In an ordinary civil claim, it is the pleadings that defines the foundation of the claim (or defence to the claim) and it is the pleadings that drive the evidence and the outcome of the case. Findings of fact and reasonable inferences drawn from primary facts are made from the evidence and the law applied to reach a conclusion that determines claim and the relief to be granted. It is possible though for a case that raises purely legal issues on the pleadings based on uncontested facts to be determined without recourse to any evidence. The plaintiff bears the onus of proving the claim on the ordinary civil standard of proof- on the balance of probabilities. These principles equally apply to the proof of a Constitutional claim brought under s 18(1) of the Constitution.
A Constitutional claim brought under s 18(1) of the Constitution insofar as it involves challenge to the validity of legislation is a public law suit that is often permeated by socio-political surroundings. There is that danger inherent in such claims that parties, in particular applicants, tend to overload the pleadings with irrelevant matters and exaggerate pleadings and material in support that prove to be burdensome for the Courts of law. It is necessary for the Court dealing with a claim under s 18(1) of the Constitution that is permeated by political surroundings to adopt a strict approach by insisting on parties to plead matters that are the proper subject for judicial resolution and confine their case to the pleadings.”
18. We adopt and apply these principles to determine the application at hand.
Evidence
19. The evidence relating to Constitutional Amendment No. 38 are those contained in Application of Dr Phillip Kereme (2017) SC1600. The pertinent parts of the evidence considered by the primary Judge as set out in paragraphs 59 - 68 are as follows:
(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 (pp. 455 Vol. 2 A/B).
(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 e 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 - pp. 473-475 A/B Vol. 2- 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 2013to alter the same Sections 193 and 208B of the Constitution. This notice is annexed to the Applicant’s affidavit Annexure “PK 6” appearing on, pp. 457 – 464 A/B 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 at pp. 477-478 A/Book Vol. 2- 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 - pp 480 - 487A/B Vol. 2, 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 pp. 497, 505 - 510 - A/B Vol. 2 -, 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)
Facts
20. The facts as found by the primary Judge are as they appear in the Application of Dr Phillip Kereme (supra), which were adopted by the full Court at the substantive hearing. For completeness, the primary Judge’s judgment on facts is appended to this judgment. See, the "Appendix " to the judgment.
21. The relevant facts on the issues before the Court are contained in paragraphs 101-107 of the judgment, they are as follows:
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 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.
On the second occasion, the same proposed law (Constitutional Amendment (Appointment of Certain Offices) Law 2013) was re-gazetted on 12 September 2013. The gazette 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.
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.
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.
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.
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.
On 14th May 2015, two (2) months and twenty-six (26) from the second and vote, the Speaker certified the amendment law. The Constitutional Amendment (Appointment of Certain Offices) Law 2014 came into force on that day.
The case of the parties and arguments
22. It is not disputed that the same amendments were twice put through the legislative process on two occasions which we refer to as the first and second occasions. It is not disputed that on the first occasion, the amendments were duly gazetted and duly circulated to members of the Parliament, but that the amendments were withdrawn. No question arises from the withdrawal. The respondents argued that because the amendment on both occasions were the same, the due gazettal and circulation of the amendments on the first occasion should be imported into the second occasion to cure the deficiency in time on the second occasion. The applicant argues that the legislative process in respect of the second occasion should commence afresh because the steps taken under the aborted process were of no consequence as found by the primary Judge.
23. On the second occasion, it is not disputed that the amendments were duly gazetted and circulated to MPs as found by the primary Judge. It is also not disputed that two procedural breaches occurred during the second occasion in terms of compliance with the procedural requirements of s 14 (2) of the Constitution. First, the bill was introduced under one month (after 13 days) of circulation to MPs. Second, the amendment was introduced for the second reading under 2 months (after 12 days) after the first reading. Both of these breaches were found by the primary judge and they were not disputed before us at the hearing. The arguments of the parties centred around the legal consequences or effect of those breaches. The arguments on the two breaches are different and we deal with them separately.
24. With regard to the first breach, (circulation of amendment under time), the applicant argued that it is a mandatory requirement that the amendment must be circulated to MPs one month before its introduction into the Parliament for the first reading. A breach of this mandatory requirement should vitiate the entire process and the amendment enacted should be declared invalid for this reason. In anticipation of the respondents argument on the directory nature of the requirements under s 14 (2), the applicant argued that Subsection 14 (2) (a) and (b) of the Constitution are expressed in mandatory terms and must be adhered to by Parliament in altering the Constitution: Reference by the Ombudsman Commission; Re Section 19 of the Constitution [2010] SC1027, In re Constitutional Amendment Law 2008, Reference by the Ombudsman Commission [2013] SC1302. To support this argument, the applicant in the case before us submits we should follow the dissenting views in Isodore Kaseng v Rabbie Namaliu (No.1) [1995] PNGLR 481 (Kaseng No. 1) Isidore Kaseng v Rabbie Namaliu (1996) OS No. 2 of 1995 Unreported Judgement (Kaseng No. 2) and Titi Christian v Rabbie Namaliu (1996) SC1583. The reasoning of the minority in those cases accord with the mandatory expression of the words found in that provision.
25. The respondents argued that although the procedures prescribed in s 14 (2), are expressed in mandatory terms, they are directory and discretionary in nature and failure to comply with any of those requirements should not render the Constitutional amendment invalid. The respondents urged us to follow the majority view in Kasieng No. 1, Kaseng No. 2 and Titi Christian cases.
26. The respondents also argued that in the alternative, there was sufficient compliance with the requirements of s 14(2) and the deficiency on the second occasion was cured by the advertisement of the amendment on the first occasion. Also, the amendment received unanimous support from MPs without any dissent on the second occasion. In those circumstances, it was argued that no difference would have been made, whether there were weeks, months or even years of circulation of the proposed amendments.
Determination of Issues
27. With regard to the first breach (under one month circulation prior to introduction of the amendment into Parliament), we find no merit in the respondents’ arguments that steps taken in advertising and circulating the amendments to MPs on the first occasion should be migrated to the second occasion to cure the deficiency in the circulation time on the second occasion. The legislative process under s 14 (2) is a series of steps to be undertaken in respect of a single item of Constitutional amendment, commencing with gazettal of the amendment and culminating in the enactment by Parliament. When the chain of events is broken by a withdrawal of the bill before Parliament, the whole process in respect of that amendment must begin afresh. Steps in the process in respect of a bill for enactment taken under an aborted legislative process cannot be migrated to another process involving the same proposed amendment. We accept the applicant’s arguments on this point.
28. The next issue is whether the requirement to introduce the bill one month after the circulation to MPs is directory and discretionary or mandatory. This issue in our view turns on the proper construction of s. 14 (2) (b) of the Constitution. There are four requirements arising under s. 14 (2) (b) for the purposes of this application. We propose to address the requirements in this order. First is for the Members of Parliament to be given the opportunity to debate the proposed laws during meetings of the Parliament. Second is for the proposed laws to be published in the National Gazette. Third is for the proposed laws to be circulated to each Member of the Parliament in accordance with the Standing Orders of the Parliament. Fourth is for the proposed laws to be circulated to all Members of the Parliament not less than one month before they are introduced into the Parliament. Here, we are concerned with the third and fourth requirements.
29. According to the facts found by the Chief Justice, as contained in Application by Dr Phillip Kereme v. The Hon. Peter O’Neil & Ors (supra), the proposed laws were circulated to each Member of the Parliament by slipping them under the doors of their offices on 31 October, 2014. The proposed laws were subsequently introduced into the Parliament on 14 November, 2014. At the time the proposed laws were circulated to Members of the Parliament, there were no Standing Orders to provide for the manner in which circulation had to be made.
30. Under the third requirement, the circulation of any proposed laws has to be done “in accordance with the Standing Orders of the Parliament”. Under the fourth requirement, circulation of any proposed laws has to be done “no less than one month” before the proposed laws are introduced into the Parliament.
31. Notably in this case, the period between 31 October, 2014, (the day the proposed laws were circulated to each Member of the Parliament), to 14 November, 2014, (the day the proposed laws were introduced into the Parliament) was only 14 days.
32. Based on the facts found by the Chief Justice in Application by Dr Phillip Kereme, the circulation of the proposed laws was not done in accordance with any Standing Orders because there were no Standing Orders. Furthermore, the circulation of the proposed laws was made 14 days before the proposed laws were introduced into the Parliament.
33. In Application by Dr Phillip Kereme, the Chief Justice noted that it was common ground between the parties that there were no Standing Orders and that the circulation of the proposed laws was done 14 days before they were introduced into the Parliament.
34. In Isidore Kaseng a similar situation arose. In that case, there were no Standing Orders and the circulation of the proposed laws was done 21 days before the proposed laws were introduced into the Parliament. The decision of the Court was divided 3 to 2. The majority comprising Amet CJ, Los, Hinchliffe and Andrew JJ, held that the requirement regarding circulation of the proposed laws was mandatory; but because there were no Standing Orders to provide for the manner in which they were to be circulated to the Members of the Parliament, the requirement was directory, until the Standing Orders were in fact made. The majority went on to hold that given that the requirement for circulation of the proposed laws was directory, only substantial compliance was required regarding circulation, including the required time-frame within which circulation had to be done. It should be noted that Los J, was in the minority, but agreed with the majority on this point.
35. The dissenting view was expressed by Kapi DCJ (as he then was). His Honour among others, said:
“...Accepting the argument that Standing Orders have not yet prescribed the manner, form, or method of circulation, what legal consequences follow from this? First, the Speaker is unable to determine the proper manner or method of circulation of a proposed law to Members of Parliament. Second, the Speaker or the Clerk of Parliament cannot determine the proper method of circulation to fill in the gap. If they did that, it would be clearly inconsistent with s. 14 (2) of the Constitution. The power to determine this is given to the Parliament to determine by way of standing orders.
The failure by the Parliament to prescribe the proper method of circulation by way of the Standing Orders does not, and cannot, make a mandatory requirement into a requirement which is merely directory. The process of reasoning by the majority in this respect is not logical, and is inconsistent with the conclusion that circulation of a proposed law in accordance with the Standing Orders is mandatory.
Furthermore, the failure by the Parliament to prescribe the proper method of circulation by way of the Standing Orders does not give rise to any power or jurisdiction in the Court to waive any of the mandatory requirements.
In my opinion, the proper view is that, if the Parliament has not yet prescribed the manner of circulation, then it must do so. It has no choice in the matter. Until the Parliament prescribes the manner of circulation, there can be no proper circulation in accordance with s.14 (2) of the Constitution, both in terms of the manner of circulation as well as circulation to members of Parliament not less than one month before it is formally introduced into the Parliament. There can be no effective date of circulation if there is no proper method of circulation in the Standing Orders.
We know, in this case, that the Clerk of Parliament, in the exercise of his discretion, decided to circulate the proposed laws by causing copies of the proposed laws to be placed in the office of every member of Parliament. The Clerk was not entitled to determine the method of circulation, as the power to determine this is given to the Parliament by way of the Standing Orders...”. (Our underlining).
36. The applicant has urged this Court to follow and adopt the minority view expressed by Kapi DCJ (as he then was) in Isidore Kaseng as the correct law. This Court is of course not bound by the majority view as it is entitled to its own views.
37. Two members of the majority in Isidore Kaseng, viz; Hinchliffe and Andrew JJ, among others, placed reliance on s. 134 of the Constitution and held that the manner of the passage of the amendments through the Parliament was a matter which involved internal procedures of the Parliament and they were non-justiciable. Their Honours in expressing this view said:
“It follows from what has already been said that this Court does have jurisdiction in this matter, in so far as it is alleged that the constitutional requirements for the amendment of the Constitution had been breached. But insofar as it is argued that the manner of the passage of the amendments through Parliament breached parliamentary procedures, these are matters which involve the internal procedures of Parliament and are non-justiciable (s. 134 of the Constitution)”.
38. We find the above observation very general. The observation also appears irrelevant to the issues before their Honours, in that the breach complained of related to the non-compliance with the mandatory requirements in s. 14 (2) (b) by the Parliament regarding making of the relevant Standing Orders.
39. Section 134 of the Constitution is in these terms:
134. Proceedings non-justiciable.
Except as is specifically provided by a Constitutional Law, the question, whether the procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable, and a certificate by the Speaker under Section 110 (certification as to making of laws) is conclusive as to the matters required to be set out in it.
40. Section 134 has to be read together with s. 133 to see its true meaning. Section 133 is in these terms:
133. Standing Orders.
The Parliament may make Standing Orders and other rules and orders in respect of the order and conduct of its business and proceedings and the business and proceedings of its committees, and of such other matters as by law are required or permitted to be prescribed or provided for by the Standing Orders of the Parliament.
41. Section 133 is an empowering provision. It confers power on the Parliament to make Standing Orders for the purposes stated in the provision.
42. Section 134 provides that the question of whether there has been compliance with prescribed procedures of the Parliament or its Committees is non-justiciable; except as is specifically provided by a constitutional law. We are of the opinion that in this case, the mandatory requirements in s. 14 (2) (b), (viz; for the circulation of the proposed laws to be made in accordance with the Standing Orders and for such circulation to be made not less than one month before the proposed laws are introduced into the Parliament), provides the exception for the procedures to be justiciable. The requirements involve making of the Standing Orders by the Parliament to provide for the manner in which proposed laws should be circulated. This in our view forms part of the law making process by the Parliament. Therefore, compliance with the procedures regarding circulation of proposed laws goes to the validity of the enacted laws. This is the unique feature about these procedures. The Standing Orders prescribe the manner in which the proposed laws are to be circulated to Members of the Parliament, the result of which is that lack of compliance with the requirement will affect the validity of the enacted laws. In stressing this point the Supreme Court in Special Reference by the Ombudsman Commission (2010) SC1027, said:
“The process of enactment commences with distribution of the proposed law to members of Parliament and publication of the proposed law in the national gazette by the Speaker: s 14 (2). The gazetted notice is necessary to give members of Parliament and members of the public an opportunity to consider the proposed law and express their views. A period of one month must precede the formal introduction of the proposed law in Parliament as required by s 14 (3).(sic) As from the formal introduction of the proposed law in Parliament up to and including debate and vote on the proposed law, the proceedings before Parliament are privileged and non- justiciable (Constitution, s 115 and s 134); it should not be interfered with by anyone including this Court: James Eki Mopio v The Speaker of the National Parliament [1977] PNGLR 420. After the proposed law is formally presented and debated and a vote is taken, certification of the new law by the Speaker must follow as a matter of formality to complete the Constitutional process of law-making”. (our underlining)
43. The above observation by the Supreme Court reaffirms the view that any issues regarding circulation of proposed laws and their introduction
into the Parliament are justiciable.
44. With great respect, we find the majority view in Isidore Kaseng inconsistent with the legislative intent expressed in s. 14 (2) (b). We, on the other hand, find the minority view in harmony with the legislative intent expressed in s. 14 (2) (b). The minority view
in our view also reflects a fair and liberal interpretation of s. 14 (2) (b). We find the minority view correctly states the law.
45. The Parliament was required to make Standing Orders which would have prescribed the manner of circulation of the proposed laws to the Members of the Parliament. The end result of the lack of Standing Orders is that the circulation of the proposed laws was not proper and was invalid.
46. We also respectfully adopt the minority view in Isidore Kaseng that the mandatory nature of the requirement in s. 14 (2) (b) could not be struck down to being merely directory, simply because there were no Standing Orders. The Court had no power to strike down a mandatory constitutional law provision that way. By doing so, the majority in our respectful opinion fell into an error of legislating. The fact of the matter is that the requirements in s. 14 (2) (b) are mandatory and they remain so even when there were no Standing Orders. To say that the mandatory nature of the requirements in s.14 (2) (b) changed to being directory because of a lack of Standing Orders gives rise to an absurdity in the interpretation of this fundamental mandatory constitutional procedural law. The function of the Court is to apply the law. The majority in Isidore Kaseng offended against this cardinal principle. Schedule 1.5 (2) of the Constitution specifically requires constitutional law provisions to be given a fair and liberal interpretation. The majority view in Isidore Kaseng quite clearly offended against this mandatory constitutional law requirement.
47. In this case, there cannot be any dispute that because of the lack of Standing Orders, the circulation of the proposed laws was done in breach of the mandatory requirements in s. 14 (2) (b). This was a fundamental breach which also rendered the introduction of the proposed laws into the Parliament and their subsequent certification invalid and unconstitutional. All the amendments are therefore invalid and unconstitutional.
48. The other reason we find the amendments unconstitutional is that, the circulation of the proposed laws breached the required time-frame in s. 14 (2) (b). The proposed laws were supposed to have been circulated to Members of the Parliament, not less than one month before they were introduced into the Parliament. In this case, the proposed laws were circulated to Members of the Parliament 14 days before they were introduced into the Parliament.
49. The procedural requirements prescribed by Section 14 of the Constitution by which the Constitutional Laws are altered or any other provision including Section 38(2) of the Constitution under which a statute is enacted, are expressed in strict and mandatory terms to underscore the importance of the Constitution as the supreme law of this land, and the seriousness with which alterations are to be treated. Alteration of the supreme law of the land occur upon strict compliance with the procedural and substantive requirements prescribed by the Constitution itself. Any attempt to water down the mandatory procedural requirements under the guise of constitutional interpretation should be avoided except in those situations where the Constitution expressly spells out conditions for the mandatory requirements to take effect. Any attempt to categorise a mandatory procedural provision into directory and discretionary it seems to us, falls into those measures intended to dilute the binding force of mandatory provisions. The Constitution itself does not make express provision for a mandatory provision to be qualified and rendered directory and discretionary.
50. We conclude that a fundamental procedural requirement of s14 (2) (a) and (b) were breached in enacting Constitutional Amendment No. 38. The amendments to s 193 and s208B were clearly made without following the mandatory procedural requirements of s 14 (2) (b) and the latter part of s 14(2). We would strike down Constitutional Amendment No. 38 and the consequential amendments made to the Organic Law on Provincial and Local Level Government, the Public Service Management Act, Regulatory Statutory Authorities Act and the regulations made thereunder that have been challenged in this application except enactments or amendments concerning the District Development Authorities which were not argued before us and which could be the subject of a separate application.
51. Given the conclusion we have reached, it is not necessary for us to make any determination on the substantive issues: Isacc Lupari v. Sir Michael Somare, MP-Prime Minister & Chairman of the National Execution Council & Ors (2010) SC1071 and National Capital Limited v. Loi Bakani, Governor, Bank of Papua New Guinea & Ors (2014) SC1392.
52. Having reached this conclusion, it is un-necessary to consider the substantive issues argued before us.
Conclusion
53. Since the Constitutional Amendments were made, they have been implemented. Actions taken under the amendment shall remain in force. This judgment will have prospective effect only.
Orders
54. The Court orders that:
___________________________________________________________
Nemo Yalo Lawyers: Lawyer for the Applicant
Wagambie Lawyers: Lawyer for the Respondents/Interveners
___________________________________________________
"APPENDIX"
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: July 31st, August 7th & 10th
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.
N Yalo for the Applicant
L Kandi for the Interveners
10th August 2017
55. Injia CJ: This is an application brought by Dr Phillip Kereme on behalf of the Public Service Commission pursuant to s 18(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.
56. 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.
57. 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
58. 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.
59. 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
60. The trial was conducted on 31 July 2017 and 7th August 2017. This judgments contains my findings of fact.
61. 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 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
62. The pleadings appear in the following documents filed by the parties:
(a) Application of Dr Phillip Kereme made pursuant to s 18(1) of the Constitution;
(b) The Interveners' Statement in Response to the application; and
(c) The applicant's statement of Reply.
ISSUES FOR TRIAL
63. The relevant and material facts to be found is driven by the Constitutional Law issues pleaded in the application. Those issues are reproduced in Schedule “A” to third judgment ( see pages 21-22).
64. 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 Laws. These are found in Schedule “A”, paragraphs 4.25, 4.26, 4.27,4.29, 4.31 of Schedule "A" hereto.
65. The second and substantive issue relates consistencies between certain provisions of the Constitution and the amendments including the Constitution Amendment (Appointments to Certain Offices) Law 2014 in question.
EVIDENCE
66. 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.
67. The affidavits admitted into evidence are:-
(a) Affidavit of Dr. Phillip Kereme sworn and filed on 20 and 24 November 2015 respectively (Court Exhibit "A" (for the Applicant);
(b) Affidavit of Dr. Phillip Kereme sworn and filed on 24 and 27 May 2016 respectively (Court Exhibit "B" (for the Applicant);
(c) Affidavit of Dr. Phillip Kereme sworn and filed on 21 July and 22 July 2016 respectively (Court Exhibit "C" (for the Applicant);
(d) Affidavit of Dr. Phillip Kereme sworn and filed on 13 and 19 October 2016 respectively (Court Exhibit "D" (for the Applicant);
(e) Affidavit of Dr. Phillip Kereme sworn on 20 February 2017 and filed on 27 February 2017 (Court Exhibit "E" (for the Applicant);
(f) Affidavit of Dr. Phillip Kereme sworn and filed on 21st July 2017 (Court Exhibit "F" (for the Applicant);
(g) Affidavit of Sir Puka Temu sworn and 21 July (Court Exhibit "G" for the Interveners); and
(h) Affidavit of Kala Acufa sworn and filed 14th July 2017 (Court Exhibit "H' for the Interveners).
68. 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 procedure 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 issue 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 Gazette notices. I also found no difficulty in accepting those inferences.
69. I make findings of fact in terms of the statement of agreed facts submitted to me by the parties.
Agreed Facts
70. 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
71. 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.
72. 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 s 195.
73. The National Executive Council (NEC) was bound by the recommendations of the PSC.
79. 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.
81. The Public Services (Management) Act 2003 conferred on the PSC the responsibility to: –
(i) conduct of merit-based assessment on candidates to be appointed as departmental heads and provincial administrators and recommend to the NEC to make the appointments; and
(ii) investigation of allegations of misconduct raised against departmental heads and provincial administrators and make appropriate recommendations to the NEC to resolve to suspend or revoke appointments; and
(iii) made the PSC’s recommendations on review of personnel matters (below agency head level) legally binding after 30 days of its decision.
84. 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.
(i) Assessment of candidates as agency heads against the fit and proper person criteria and compliance with the merit-based selection process to make recommendations to the NEC (to be accepted, rejected or referred back, but not altered by the NEC).
(ii) Investigation of allegations of misconduct against agency heads in order to recommend action to the NEC on culpability, suspension and termination.
(iii) Made PSC decision on appeal by the public servants (below agency heads level) binding on the agency heads after a period of 30 days.
90. 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.
99. In February 2013 the Parliament passed the Regulatory Statutory (Appointment to Certain Offices) (Amendment) Act 2013 (No. 28 of 2013). Relevant Legislation Bk tab 4.
100. 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.
101. 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 Constitutional Amendment (Appointments to Certain Offices) Law 2014. Under this new Act, the Ministerial Executive Committee (MEAC) ws 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
102. The process to enact the Constitutional Amendment (No. 38) (Appointment of Certain Offices) Law 2014 commenced in March 2013 and completed in May 2015.
103. 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.
104. 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 e 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.
105. 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”.
106. 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.
107. On 12 September 2013 the Speaker published in the National GazetteNo G395 on 12 September 2013 the same proposed law Constitutional Amendment (Appointment of Certain Offices) Law 2013to 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.
108. 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.
109. 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”.
110. 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”.
111. 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
112. 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.
113. A copy of this proposed law was circulated to each Member of Parliament on 12 March 2013.
114. 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”.
115. On 12 September 2013 the Speaker published in the National GazetteNo 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.
116. 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.
117. 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”.
118. 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
119. 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.
120. 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.
121. 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. ]
122. 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”.
123. 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)
124. In 2014 the Parliament passed the following Acts:
(1) District Development Authority Act 2014; and(Relevant Legislation Bk, tab 5)
(2) Public Services (Management) Act 2014 (certified on 19.09.14)(Relevant Legislation Bk, tab 6) This Act repealed the 2013 Act.
125. 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
126. The following regulations have been made in 2014:
127. 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
128. Amendments to Regulations No 7 of 2014 made pursuant to Section 28 of the PSMA 2014 and Regulation No 9 of 2014 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.
129. 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.
130. 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.
131. Cabinet decision No 147/2016 of June 2016 could not be implemented 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.
132. 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.
133. The Interveners counsel produced a summary of the legislative process that commenced in 2013 and concluded in 2014 referred to above, which I reproduce the Schedule "B" hereto ( see pages 17-21).
SUMMARY & CONCLUSIONS
134. I confine my summary of findings to the amendments to the Constitution and the Organic Laws under the two main issues in the trial.
135. 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.
136. 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
137. 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 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.
138. On the second occasion, the same proposed law (Constitutional Amendment (Appointment of Certain Offices) Law 2013) was re-gazetted on 12 September 2013. The gazette 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.
139. 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.
140. 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.
141. 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.
142. 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.
143. On 14th May 2015, two (2) months and twenty-six (26) from the second and 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
144. On 7th March 2013, the proposed law was gazetted. No question arises as to the impropriety or irregularity of this gazette.
145. On 12 March 2013, the proposed law was circulated to MPs by slipping a copy under the door of each MPs Parliament office.
146. On 15 May 2013, the first reading of the bill occurred. Sir Puka Temu, Minister for Public Service presented the bill. Parliament. The bill was referred the Permanent Parliamentary Committee on Constitutional Laws, Acts and Subordinate Legislation for consideration and reporting.
147. Thereafter the bill was not progressed to the second and third reading. This process was aborted. No question arises with regard to this process.
148. 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.
149. On 31st October 20013, 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.
150. The first reading of this proposed law already took place on 15 May 2013 (refer to paragraph 87, supra.)
151. 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.
152. 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.
153. On 14th May 2015, two (2) months and twenty-six (26) from the second 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
154. 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 gazette.
155. 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.
156. 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.
157. 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.
158. 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.
159. 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
160. The facts found in relation to the substantive issues are as they appear in the Agreed Facts.
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