N6064
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 141 OF 2015

BETWEEN:

DIGICEL (PNG) LIMITED
Plaintiff

AND:

HON. JIM MIRINGTORO in his capacity as Minister for Communications and Information Technology
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

AND:

NATIONAL INFORMATION AND COMMUNICATIONS TECHNOLOGY AUTHORITY
Third Defendant

Waigani: Nablu, AJ
2015: 4th, 13th August

JUDICIAL REVIEW – Interlocutory Application – Whether Constitutional questions should be referred to the Supreme Court pursuant to Section 18 of the Constitution –Questions not Constitutional questions – Trivial Questions - Application refused.

Cases Cited:
Anderson Aigiru v. The Electoral Commission (2002) SC684
Iambakey Okuk v. Fallsheer [1980] PNGLR 2474
Issac Lupari v. Sir Michael Somare (2008) N3476
Issac Lupari v. Sir Michael Somare & Ors (2008) SC930
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)
Ombudsman Commission v. Peter Yama (2004) SC 747
Re: Raz v. Matane [1985] PNGLR 329.
Vaki v. Eliakim OS (JR) No. 485 of 2014
Zachery Gelu v. Sir Michael Somare MP (2008) N3524

Counsels: 
M. Varitimos, QC & P. Tabuchi, for the Plaintiff
D. Denniston, for the First and Second Defendant
G. Geroro, for the Third Defendant

13th August, 2015

1. NABLU, AJ: By way of notice of motion filed on 6th July 2015, the plaintiff seeks to refer two constitutional questions to the Supreme Court pursuant to Section 18 of the Constitution.

2. The plaintiff argues that constitutional questions arise in the course of this proceeding.

3. The defendants contest the application.

4. The constitutional questions are;

1.	Whether, on the proper interpretation or application of Section 59 of the Constitution, Section 130(5) of the National Information and Communication Technology Act (NICT Act) is unconstitutional, invalid and of no effect;

2.	Whether, on the proper interpretation or application of Section 59 of the Constitution a deemed decision by the Minister to accept a declaration recommendation under Section 130(5) of NICT Act is unconstitutional, invalid and of no effect?

5. I am of the view, the critical issue is whether Section 130(5) of the (NICT Act) affords or denies the plaintiff's right to natural justice.

6. 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. 

7. 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.

8. The defendants opposed the application to refer the questions. Submissions by counsel raise two points of contention. The questions to be referred are not constitutional questions. The second point of contention is in regard to the questions to be referred. The defendants argue that the questions that the plaintiff seeks to refer to the Supreme Court are not constitutional questions and are therefore trivial questions. Mr Geroro of counsel for the third defendant referred me to the Supreme Court Case of Iambakey Okuk v. Fallsheer [1980] PNGLR 2474, where the Supreme Court has finally and authoritatively held that the proper approach to take in order to determine the interpretation and applicability of Section 59 of the Constitution.

9. 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 and a stay of the decision 

10. 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. 

11. 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. 

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

13. In O'Neill v. Ombudsman Commission (supra), 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.

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

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

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

17. 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 refer constitution questions. 

18. 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 trivial, 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."

19. 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. 

20. 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. 

21. 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.

23. 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. 

24. 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 130(5) of the National Information and Communication Technology Act and whether it is inconsistent with Section 59 of the Constitution. 

25. The question of whether a provision is valid is determined by first referring to the enabling legislation. Section 10 of the Constitution, provides for the hierarchy of laws. If an issue is raised in regard to the validity of an Act, enquiry is first made with the enabling Act of Parliament. If it is proven that there is an inconsistency with the Constitution, then it can be declared null and void. This is a matter which is within the National Court's jurisdiction. 

26. In the present case, I am of the view that question one (1) relates to an interpretation of 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. 

27. The second question is the same question asked in a different form. 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 NICT Act and not a Constitutional Law. 

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

29. 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.

30. Section 59 of the Constitution has been judicially interpreted in the Supreme Court case of Iambakey Okuk v. Fallsheer (supra) and Ombudsman Commission v. Peter Yama (2004) SC 747 and therefore, there is no need to refer a question of the interpretation of Section 59 of the Constitution. I find that the plaintiff has not made out two of the four requirements and therefore, the constitutional questions should not be referred to the Supreme Court.

31. Furthermore, the plaintiff has raised grounds of review which question the validity of the provisions of the NICT Act. The questions sought to be referred by the plaintiff to the Supreme Court, are also the basis of the substantive relief sought in the judicial review application. This would in my view constitute an abuse of process, to file a Judicial Review application in the National Court and refer questions to the Supreme Court which would have the effect of concluding the matter in the National Court, if the Supreme Court answered the questions in the applicants favour (See Anderson Aigiru v. The Electoral Commission (2002) SC 684). Therefore, I am not convinced that the questions should be referred to the Supreme Court. 

Conclusion
32. This application to refer constitutional questions pursuant to Section 18 of the Constitution is misconceived. 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 can be properly determined by the National Court. 

33. The proper course in this matter would be for the plaintiff to apply for 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.

34. 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.

_____________________________________________________________
Young and Williams Lawyers: Lawyers for the Plaintiff 
Solicitor General's Office: Lawyers for the First and Second Defendant
Leahy Lewin Lowing Sullivan Lawyers: Lawyers for the Third Defendant