N6033

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 240 OF 2015

BETWEEN:

DR. MODOWA TREVOR GUMOI
Plaintiff

AND:

GULL GORGOM
First Defendant

AND:

JOHN KALI, SECRETARY FOR DEPARTMENT OF PERSONNEL MANAGEMENT
Second Defendant

AND:

SIR PUKA TEMU, MINISTER FOR PUBLIC SERVICE AND CHAIRMAN OF THE MINISTERIAL EXECUTIVE APPOINTMENTS COMMITTEE
Third Defendant

AND:

THE NATIONAL EXECUTIVE COUNCIL
Fourth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Nablu, AJ
2015: 18 June
9 July

JUDICIAL REVIEW – Application for leave – Whether Constitutional questions should be referred to the Supreme Court pursuant to Section 18 of the Constitution – Leave should be determined first - Application refused.

Cases Cited:
Lowa v. Akipe [1992] PNGLR 399
O'Neill v. Ombudsman Commission of Papua New Guinea (2014) N5828
O'Neill v. Ombudsman Commission of Papua New Guinea (2015) N5857
O'Neill v. Public Prosecutor (2015) (Unreported National Court)
Issac Lupari v. Sir Michael Somare (2008) N3476
Isaac Lupari v. Sir Michael Somare & Ors (2008) SC930
Zachery Gelu v. Sir Michael Somare MP (2008) N3524
Re:Raz v. Matane [1985] PNGLR 329. 
Vaki v. Eliakim OS (JR) No. 485 of 2014

Counsel: 
GM Egan & R Raka, for the Plaintiff 
I Mugugia, for the second, third, fourth & fifth Defendants
M Skonge, for the first Defendant

9th July, 2015 

1.	NABLU, AJ:	 Dr Modowa Gumoi, the acting Provincial Administrator for Western Province by way of motion seeks to refer certain questions to the Supreme Court for interpretation pursuant to Section 18 of the Constitution. The application for leave to seek judicial review is pending.

2.	This is an application to refer constitutional questions to the Supreme Court. It is claimed by the plaintiff that the following questions arise in these proceedings. 

(1)	Whether, on the proper interpretation and application on Section 37(4)(a) of the Constitution and Section 5(1)(f) of the Public Service (Management) (Appointment of Provincial Administrators) Regulation 2014 (PSPA Regulation), the requirement under Section 5(1)(f) of the PSPA Regulation that a candidate is "...free from any criminal charges or outstanding court cases of a nature likely to seriously injure the professional standing and reputation of the officer, as verified by a current police clearance…" is consistent with the requirements of Section 37(4)(a) of the Constitution and that therefore, to the extent of that inconsistency, it is constitutionally invalid, null and void.

(2)	Whether, on the proper interpretation and application of Section 38(2)(b) of the Constitution, and Section 61 of the Public Service (Management) Act 2014 and Section 5(f) the PSPA Regulation, the Act does not satisfy the requirements of Sections 38(2)(a) and (b) of the Constitution in that it does not either express itself as being a law that is made for a purpose referred to Section 38(1)(a)(i) of the Constitution, or otherwise specifically state to the right of freedom which it regulates or restricts, specifically the presumption of innocence as prescribed protected under Section 37(4)(a) of the Constitution, and that therefore, to the extent that is so defective, it is constitutionally invalid as being in breach of Section 38(2)(a) and (b) of the Constitution.

3.	It is settled law that the National Court has the jurisdiction to refer questions relating to the interpretation or application of the provision of Constitutional Laws to the Supreme Court who has original jurisdiction as stipulated under Section 18 of the Constitution. Section 18 of the Constitution states: 

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

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

4.	The plaintiff filed this proceeding to apply for leave to review the decision of the Minister for Public Service and the National Executive to appoint Gull Gorgom as the Acting Provincial Administrator of Western Province. 

5.	There are two decisions made in February 2015. The first decision to appoint Mr Gorgom was made by the Minister and published in the National Gazette No. G127 of 2015 which is the subject of the application for judicial review commenced by originating summons and referenced OS NO. 120 of 2015.
 
6.	The second decision is the decision of the Head of State purportedly revoking the earlier gazetted notice of appointment and reappointing Mr Gorgom. This decision is the subject of these proceedings OS No. 240 of 2015. The current application was filed in this proceeding.

7.	Ms Mugugia of counsel for the second, third, fourth and fifth defendants opposed the application to refer the questions. Submissions by counsel raise two points of contention. They are that the plaintiff has not been granted leave to apply for judicial review and therefore, the proceedings are not before this Court. The plaintiff should apply for leave first and if granted leave, and it is apparent that there constitutional questions, the plaintiff can then apply to refer those questions to the Supreme Court. 

8.	The second point of contention is in regard to the questions to be referred. The questions that the plaintiff seeks to refer to the Supreme Court are not based on facts but assumptions and they have not been provided for or properly pleaded in this proceedings. Counsel referred me to the Supreme Court Case of Lowa v. Akipe SCR NO. 5 of 1992, where the Supreme Court held that the questions should be based on established facts.

9.	Ms Skonge of counsel for the first defendant supported the submissions made by the States counsel and added other two (2) points and they are that the proceedings OS No. 120 of 2015 should be struck out, the decision challenged was revoked. Counsel also referred the Court to the case of Vaki v. Eliakim OS (JR) No. 485 of 2014 which she submitted supported the argument that leave should be granted first, before constitutional questions are referred to the Supreme Court. 
 
10.	Before determining the issue of whether this Court should refer the questions I will deal first with the legal issue raised by the Counsels. 

11.	The issue is whether leave to apply for judicial review should be granted first before the National Court can exercise its powers to refer the constitutional questions to the Supreme Court. 

12.	In O'Neill v. Ombudsman Commission of Papua New Guinea (2014) N5828, Makail J referred constitutional questions which arose in judicial review proceedings. Leave was granted to review the decision before the application for reference of constitutional questions to the Supreme Court was made. This followed the case of Vaki v. Eliakim & Others OS No. 485 of 2014, where Gavara-Nanu J referred constitutional questions to the Supreme Court following the grant of leave to review the decision and the decision subject of review was stayed. 

13.	In the recent decision of O'Neill v. Ombudsman Commission of Papua New Guinea (2015) N5857, Davani J referred constitutional questions which arose from an Originating Summons seeking an injunction to restrain the Ombudsman from tabling a Report in Parliament. 

 14.	In O'Neill v. Public Prosecutor (2015) Unreported, Cannings J referred Constitutional questions to the Supreme Court. In both those latter cases the plaintiff commenced proceedings by way of an originating summons seeking declarations and injunctive relief. 

15.	The facts of those cases are distinguishable from the present case.

16.	In O'Neill v. Ombudsman Commission, the constitutional issue which arose was the interpretation and application of Section 23 and 27 of the Organic Law on the Duties and Responsibilities of Leaders and the Organic Law on Ombudsman Commission, Section 59 of the Constitution and the Constitutional powers of the Ombudsman Commission.

17.	In the other case of O'Neill v. Ombudsman Commission, the constitutional law question which arose related to the interpretation of Section 219(1)(1)(a) of the Constitution and the provision of the Organic Law on Ombudsman Commission.

18.	In O'Neill v. The Public Prosecutor the questions which were referred to the Supreme Court related to the interpretation of the Section 177 of the Constitution, in regard to the Public Prosecutors powers under the Constitution.

19. 	In the earlier case of Issac Lupari v. Sir Michael Somare (2008) N3476, this was an application for judicial review. Leave had been granted. In the course of determining the substantive application, Injia DCJ (as he then was) referred questions to the Supreme Court to determine. 

20.	The Supreme Court in Isaac Lupari v. Sir Michael Somare & Ors (2008) SC930 at page 12 stated that the four important requirements must be satisfied before the National Court can exercise its discretion to referral constitution questions. 

21.	The Supreme Court stated that: 

"13. Our reading and consideration of the cases and the particular wording in s. 18 makes it very clear that, there can be a referral under s. 18 (2) only where:

(a)	There is an issue as to the interpretation or application of a provision of a constitutional law;

(b)	The question so arising is not trival, vexatious or irrelevant;

(c)	The Supreme Court has not previously finally and authoritatively interpreted and applied the particular constitutional provision;

(d)	No other provisions of the Constitution or any other constitutional law give the National Court jurisdiction to interpret and apply a constitutional law."

22.	In Zachery Gelu v. Sir Michael Somare MP (2008) N3524, when determining whether an application can raise constitutional grounds of review the National Court was of the view that alleged constitutional breaches can form the grounds of review on which judicial review is sought. The Court stated that if leave was granted questions of constitutional interpretation and application might arise during the hearing of the substantive application for judicial review that will necessitate a reference to the Supreme Court. Justice Cannings then went on to grant leave to apply for judicial review. 

23.	The issue before me is whether leave should be determined first before constitutional questions are referred. I am of the view that the plaintiff should apply for leave first. If leave is granted then the applicant can refer constitutional questions if they arise. The National Court is obliged to refer such questions to the Supreme Court provided they are not trival, vexatious or irrelevant: Re:Raz v. Matane [1985] PNGLR 329. 

24.	Section 155(4) of the Constitution empowers both the Supreme Court and the National Court with the inherent power to make orders in the nature of prerogative writs and such orders necessary to do justice in the circumstances of a particular case.

25.	The plaintiff seeks a declaration and an order in the nature of prerogative writs in the substantive matter if leave is granted. Order 16 Rule 1(1) of the National Court Rules, states that the relief sought shall be made by way of judicial review according to Order 16 of the National Court Rules.

26.	Even if I am wrong, when applying the four requirements provided by the Supreme Court in Lupari v. The State (supra) I am not persuaded that there is an issue as to the interpretation or application of a provision of a Constitutional Law. 

27.	In the present case, the first question to be referred is in my view, framed to give the appearance that it involves the interpretation of a constitutional law provision when in fact it is not the case. The question is the interpretation of the Section 5(f) of the Public Services (Appointment of Provincial Administrators) Regulation 2014 and whether it is inconsistent with the Constitution. 

28.	The enabling Acts of Parliament provide for the enactment of Regulations. The question of whether a Regulation is valid is determined by first referring to the enabling legislation. Section 10 of the Constitution, provides for the hierarchy laws. If an issue is raised in regard to the validity of a regulation, enquiry is first made with the enabling act of parliament. If it is proven that there is an inconsistency with the enabling legislation, then it can be declared null and void. This is a matter which is within the National Courts' jurisdiction. 

29.	In the present case, I am of the view that question one (1) relates to an interpretation of a regulation not an act of parliament against the Constitution. Therefore this question is trivial and vexatious. It is a question that can be determined by the National Court. 

30.	The Second question relates to whether section 61 of the Public Services (Management) Act and Section 5(f) of the Public Services (Management)(Employment of Provincial Administrators) Regulation 2014 is consistent with the Constitution in particular Sections 38 and Section 37 of the Constitution. The question of whether an Act of Parliament is inconsistent with a provision of the Constitution is considered with regard to Section 10 and 11 of the Constitution and the basic principle is that the Constitution is the Supreme Law. I am not persuaded that this is a constitutional question. The question is the interpretation of the Public Services (Management) Act and the Regulation not a Constitutional Law. 

31.	Therefore, the questions raised by the plaintiff are trivial, vexatious and irrelevant at this stage of the proceedings. 

32.	The Supreme Court in Luparis' case was of the view that all four requirements must be satisfied. The next principle to be satisfied is that the Supreme Court has not previously finally and authoritatively interpreted and applied the particular constitutional provision.

33.	The term "charged" in Section 37(4)(a) has been judicially interpreted in the Supreme Court case of SCR No. 1 of 1981; Re Inter-Group Fighting Act 1977 [1981] PNGLR 151 and therefore, there is no need to refer a question of the interpretation of Section 37 (4) of the Constitution. I find that the plaintiff has not made out two of the four requirements therefore, the constitutional questions should not be referred to the Supreme Court.

Conclusion
34.	This application to refer constitutional questions pursuant to Section 18 of the Constitution is misconceived. Leave to apply for judicial review has not yet been determined. In addition to that the questions to be referred do not raise a question of an interpretation of a Constitutional Law which would oblige the National Court to refer the questions to the Supreme Court and invoke their original interpretative jurisdiction under Section 18 of the Constitution. The questions posed are trivial, vexatious and irrelevant at this stage, because the matter is not properly before the National Court. Because of the fact, that leave has not been granted, the National Courts' inherent jurisdiction for judicial review has not yet been invoked. 

35.	The proper course in this matter would be for the plaintiff to apply for leave to seek judicial review. Order 16 of the National Court Rules require that the application for judicial review must be made promptly and prosecuted expeditiously. Therefore, delay and in fact undue delay must be explained satisfactorily to the Court. Judicial Review entails a review of administrative decisions of public authorities, and therefore there is a need to ensure that applications are determined promptly so that those issues between the parties can be settled.

36.	For the foregoing reasons, I exercise my discretion to refuse the relief sought in the plaintiff's application and dismiss the application. Costs follow the event, accordingly, the plaintiff to pay the defendants costs of the application. 

Orders accordingly.
Posman Kua Aisi Lawyers: Lawyers for the Plaintiff
Horizon Lawyers: Lawyers for the First Defendant
Solicitor General's Office: Lawyers for the Second, Third, Fourth & Fifth Defendants