N7065
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 78 OF 2017

BETWEEN
JOSEPH KOBOL
 Petitioner

AND
WILLIAM POWI
First Respondent

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

 &
 EP. NO. 79 OF 2017

BETWEEN
PASTOR BERNARD PETER M. KAKU
 Petitioner

AND
WILLIAM POWI
First Respondent

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

    Waigani: Makail, J
2017: 6th December & 
      2018: 5th January 

PRACTICE & PROCEDURE – Objection to competency of motion – Motion seeking order to refer questions to Supreme Court for interpretation – Lack of procedure – Whether motion proper – Constitution – Section 18 

Cases cited:

Alois Kingsley Golu v. Regett Marum & The Police (2013) N5104
Application by Sir Makena Geno v. Attorney-General (2015) SC1455
Application by Rt Hon. Sir Mekere Morauta v. NEC & The State (2016) SC1529
Belden Namah v. Justice Goodwin Poole & 2 Ors (2015) N6121
Geoffrey Vaki v. Chief Magistrate Nerrie Eliakim & Ors: OS (JR) No 485 of 2014 (Unnumbered & Unreported Judgment by Gavara-Nanu J)
Hon. Peter O’Neill v. Ombudsman Commission & The State (2014) N5828
Hon. Peter O’Neill v. Ombudsman Commission & The State (2015) N5857
Isaac Lupari v. Sir Michael Somare, NEC & The State (2008) N3476
J Byron Chan v. Walter Schnaubelt & Electoral Commission (2017) N6999
Kenn Mondiai v. Wawoi Guavi Timber Co Limited & Ors (2007) SC889
Mathew Damaru & Anor v. Geoffrey Vaki: OS No 484 of 2014 (Unnumbered & Unreported Judgment of 28th July 2014 by Chief Justice) 
Newsat Limited v. Telikom PNG Limited & Ors (2007) N3449
Peter O’Neill v. Pondros Kaluwin & Ors (2015) N5843
Re powers, functions, duties and responsibilities of the Commissioner of Police (2014) SC1388
Sam Koim v. Peter O’Neill, NEC & The State (2016) N6198 
Tohian v. Geita & Mugugia [1990] PNGLR 353

Counsel:

Mr. G.M. Egan, for Petitioner (EP 78 of 2017)
Mr. T. Imal, for Petitioner (EP 79 of 2017)
Mr. A. Baniyamai, for First Respondent 
Mr. A. Kongri, for Second Respondent (EP 78 of 2017)
Mr. J. Simbala, for Second Respondent (EP 79 of 2017)
 
INTERLOCUTORY RULING

5th January, 2018

1.	MAKAIL J:  There is a motion in each proceeding by the first respondent seeking an order to refer eight proposed questions to the Supreme Court for interpretation.  The motion is brought pursuant to Section 18 of the Constitution. 

2.	Section 18 states:

	“18.	Original interpretative jurisdiction of the Supreme Court.
(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.”

Proposed Questions

3.	The proposed questions relate to the proper exercise of power by the Electoral Commissioner to stop counting of votes and declare the first respondent as candidate elected under Section 175 of the Organic Law on National and Local-level Government Elections (“Organic Law on Elections”).

Objection to Competency of Motion

4.	In proceeding EP No. 78 of 2017, by notice of motion filed 2nd December 2017 the petitioner objected to the competency of the first respondent’s motion.  The grounds are: 
  
1.	Failure to seek leave prior to filing a notice of motion to bring an interlocutory application pursuant to Rule 22 of the National Court Election Petition Rules, 2017 (“EP Rules”), and

2.	Lack of expressed provision for filing of motion to request the Court to refer questions to the Supreme Court for interpretation pursuant to Section 18 of the Constitution.

5.	In proceeding EP No 79 of 2017, the petitioner did not file a motion to object to the competency of the motion by the first respondent but supports the petitioner in the other proceeding to have both motions by the first respondent dismissed.

No leave sought to rely on Motion

6.	As to the first ground, the petitioner submitted that in election petition proceedings the EP Rules does not provide for a form by which an applicant may use to bring an interlocutory application.  As such, leave of the Court must be obtained prior to filing one pursuant to the Court’s discretion under Rule 22 of the EP Rules.

7.	The submission is noted but it would be placing an enormous burden on an applicant who intends to bring an interlocutory matter/application to the notice of the Court to first, seek leave to file a notice of motion and then if leave is granted, to proceed with the substantive motion.  Such would defeat the whole purpose of getting an expeditious hearing.

8.	It is helpful though, if the form contains a correct description of the Court’s jurisdiction for its exercise of power, a clear and concise statement of the nature and grounds of the application, names of parties, and importantly, date and time of hearing.  Where the form satisfies these requirements, it suffices and it would be nonsensical to have it struck out simply because no leave has been obtained to rely on it. 

9.	It is also worthy to note that a common type of form used in legal proceedings to bring interlocutory applications is a notice of motion and just because there are no expressed provisions in the EP Rules for that does not mean that it is a bar to a party to use it as a matter of practice.

10.	In this case, the form used is a notice of motion.  It contains sufficient and relevant information on, amongst other things, the nature and grounds of the interlocutory application.  It also makes reference to the Court’s jurisdiction for the exercise of power.  Whether the reference to the power of the Court under Section 18 of the Constitution has been validly invoked is the real issue for consideration.  But importantly, there is no prohibition against the use of a notice of motion and therefore, leave is unnecessary.

11.	This ground is dismissed.

Motion to Refer Question(s)

12.	The second ground is fairly substantive and brings up the question of whether it is open to a party to invoke Section 18 of the Constitution by filing a motion to request the National Court to refer a question(s) to the Supreme Court for interpretation.  If so, when should it make the application?

13.	The petitioners’ submission is straight forward.  It should be the National Court on its own motion.  In this case, it is an abuse of the Court’s process for the first respondent to file a motion to seek an order requiring the Judge to instigate a process which ought to have been exercised at the sole discretion of the Judge. 

14.	Further, they contended that by analogy what the first respondent has done was disapproved by the Court in the case of Sam Koim v. Peter O’Neill, NEC & The State (2016) N6198 where the Court refused an application by the Prime Minister and the National Executive Council (NEC) to have Mr. Sam Koim show cause why the Court should not direct the Registrar of the National Court to apply or commence proceedings against him.  

15.	The Court held that it was an abuse of process because it was tantamount to compelling the Court to direct the Registrar to cite Mr. Koim for contempt of court.

16.	The first respondent submitted that the motion is not an abuse of process but a good practice for the sole purpose of bringing the proposed questions to the notice of the Court for consideration.  What he has done is not expressly prohibited by Section 18 of the Constitution and the important question is whether the proposed questions require the intervention of the Supreme Court.  This question is one solely within the discretion of the Court to determine.

17.	At the outset, the observation to make is that, Section 18 of the Constitution does not prescribe a procedure by which the Court may refer a question(s) to the Supreme Court for interpretation.  For instance, it does not make provision for who is to initiate the referral and by what mode.  In my view, it is a discretionary matter.

18.	The lack of procedure may be a deliberate decision by the drafters of the Constitution so as to prevent abuse by litigants and allow only genuine cases to be referred to the Supreme Court.  The converse is almost inevitable.  Litigants have become creative by adopting different procedures to request the Court to refer question(s) to the Supreme Court for interpretation.  A good example is the procedure adopted by the first respondent in these cases.  Another is where a party raises the question of referral in submissions or arguments during the course of a hearing or trial: Isaac Lupari v. Sir Michael Somare, NEC & The State (2008) N3476.

19.	A further example is where a person applies directly to the Supreme Court as an “interested person” and with the Court’s indulgence and approval, is granted the requisite standing or locus standi to bring a Section 18 Reference as was the case in Kenn Mondiai v. Wawoi Guavi Timber Co Limited & Ors (2007) SC889 and Application by Sir Makena Geno v. Attorney-General (2015) SC1455; cf Application by Rt Hon. Sir Mekere Morauta v. NEC & The State (2016) SC1529.

20.	For instance, there was no motion filed and moved by either of the parties in the case of Isaac Lupari v. Sir Michael Somare, & Ors (supra) requesting the Court to consider referring, amongst other things, questions relating to the requirement to consult the Public Services Commission prior to appointment and/or revocation of a Departmental Head to the Supreme Court for interpretation.  The referral was done by the Judge after hearing counsel for the parties and considering a draft Reference prepared by the Solicitor-General.

21.	Even a decision of a magistrate in a committal proceeding declining to refer questions to the Supreme Court for interpretation was allowed by the National Court to be reviewed following grant of leave for judicial review.  That was in the case of Tohian v. Geita & Mugugia [1990] PNGLR 353.  It is unclear from the reported judgment whether the subject decision was based on a motion for referral.

22.	Similarly, with the limited information available, it is unclear from the reported judgment of Alois Kingsley Golu v. Regett Marum & The Police (2013) N5104 whether a decision of the committal Court which did not refer constitutional questions to the Supreme Court and the subject of a judicial review application was based on a motion for referral.

23.	The Re powers, functions, duties and responsibilities of the Commissioner of Police (2014) SC1388, was a decision of a five-man bench of the Supreme Court following a merger of different proceedings commenced in the National Court where different Judges referred questions to the Supreme Court for interpretation in relation to, amongst others, powers of the Commissioner of Police to deal with a warrant of arrest.  

24.	Two of these cases were Mathew Damaru & Anor v. Geoffrey Vaki: OS No 484 of 2014 (Unnumbered & Unreported Judgment of 28th July 2014 by Chief Justice) and Geoffrey Vaki v. Chief Magistrate Nerrie Eliakim & Ors: OS (JR) No 485 of 2014 (Unnumbered & Unreported Judgment by Gavara-Nanu J). 

25.	Again, with the limited information available, it is not clear if the Judges in those cases acted on a motion to refer the questions to the Supreme Court for interpretation.

26.	It appears the first reported case where a party filed and moved a motion to have the Court consider referring questions to the Supreme Court was in Newsat Limited v. Telikom PNG Limited & Ors (2007) N3449.  A motion was filed and moved by the plaintiff to refer certain questions relating to the constitutionality of a number of Acts of Parliament regulating the industry in which the companies operated. 	The Court refused to refer the questions because it was premature.

27.	The Court held so because there were no findings of fact upon which the Court could refer a constitutional question to the Supreme Court under Section 18 of the Constitution.  The Court also reminded parties that “Section 18(2) is not an avenue by which hypothetical questions are sent to the Supreme Court. Hypothetical questions, including challenges to the constitutionality of an Act of Parliament, can only properly be referred to the Supreme Court under Section 19 of the Constitution. Only institutions and office-holders like the Parliament, the Ombudsman Commission, the Public Solicitor and the Public Prosecutor (the full list is in Section 19(3)) can make a Section 19 reference.”

28.	It is instructive to note that Section 18 of the Constitution is not an open door avenue for litigants to invoke to agitate their grievances.  Further, a constitutional question is only referred to the Supreme Court based on findings of fact and the question(s) must be relevant to those facts.  Cannings, J referred to these principles and decided cases in Belden Namah v. Justice Goodwin Poole & 2 Ors (2015) N6121.  I concur with his Honour’s restatement of the relevant principles at [22] and [23] of the judgment.  His Honour said:

“22.    I reiterate the view expressed in my earlier ruling, and uphold the cogent submission of Mr Kandi on this important point, that Section 18(2) of the Constitution is not an avenue by which hypothetical constitutional questions are to be referred to the Supreme Court. An application to refer questions under Section 18(2) should not be treated as an originating process. If a person has a grievance that involves application or interpretations of Constitutional Laws he must approach the Supreme Court directly under Section 18(1) of the Constitution, which means that in the first instance he must satisfy the Supreme Court that he has standing according to the rules of the underlying law formulated in Re Petition of MT Somare [1981] PNGLR 265. (See Re Reference by Ken Norae Mondiai (2010) SC1087, Application by Ila Geno (2014) SC1313 and Belden Norman Namah MP v Rimbink Pato MP, National Executive Council & The State (2014) SC1304.)
23.    If the National Court is to make a reference under Section 18(2) it must base the questions it refers on findings of fact and the questions must be relevant to those facts (SCR No 3 of 1982, In re the Commissioner of Correctional Services [1982] PNGLR 405; SCR No 5 of 1982, Berghuser v Aoae [1982] PNGLR 379; Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60; Paul Tohian v Iova Geita (No 2) [1990] PNGLR 479; Lowa v Akipe [1992] PNGLR 399; Haiveta v Wingti (No 1) [1994] PNGLR 160; Isaac Lupari v Sir Michael Somare (2008) N3476; Alois Kingsley Golu v Regett Marum (2013) N5104).”

29.	The recent judicial trend shows that the National Court seemed quite content with parties filing a motion to request the Court to refer a question(s) to the Supreme Court for interpretation.  	This practice appears to be a recent invention and development in the area of practice and procedure under Section 18 of the Constitution.  

30.	The case of Hon. Peter O’Neill v. Ombudsman Commission & The State (2014) N5828 is one example where a motion was filed and moved by the Prime Minister to refer a number of questions to the Supreme Court for interpretation in relation to the scope and nature of a direction issued by the Ombudsman Commission under Section 27 (4) of the Constitution. There was no issue with the competency of the motion as it was not raised.

31.	Next is another case by the Prime Minister in Hon. Peter O’Neill v. Ombudsman Commission & The State (2015) N5857, a decision by Davani J where a motion was filed and moved by the Prime Minister to refer a number of questions to the Supreme Court for interpretation in relation to the application of Section 219 (1) of the Constitution, Section 13 of the Organic Law on Ombudsman Commission and publication of a report into the alleged borrowing of AU$1.239 billion loan from Union Bank of Switzerland.  Again, none of the defendants objected to the competency of the motion.

32.	A third case by the Prime Minister to refer questions to the Supreme Court for interpretation was decided by Cannings J in Peter O’Neill v. Pondros Kaluwin & Ors (2015) N5843 following an application by way of an amended motion.  That was in relation to the request by the Public Prosecutor to the Chief Justice to set up a Leadership Tribunal to investigate allegations of misconduct by the Prime Minister. It is the same story here; none of the defendants objected to the competency of the motion by the Prime Minister.

33.	Another case is Belden Namah v. Justice Goodwin Poole & 2 Ors (2015) N6121 where a motion was filed and moved by the plaintiff to refer questions to the Supreme Court for interpretation.  The motion was refused by the Court as no such questions had arisen in the proceeding.  There was no contest to the competency of the motion by the plaintiff as it was not raised.

34.	Recently, in the election petition case of J Byron Chan v. Walter Schnaubelt & Electoral Commission (2017) N6999 by a motion, the petitioner applied to refer certain questions to the Supreme Court regarding the legality of polling at certain polling locations in the Namatanai Open electorate in the 2017 General election.  Although the motion was not contested by the first respondent, it was refused.  The Court held that though the proposed questions were not vexatious or irrelevant, they were trivial and need no intervention of the Supreme Court.  In other words, they could be adequately addressed by the National Court.  The competency of the motion was not raised and considered by the Court.

35.	Those cases highlight the developing trend in the practice and procedure under Section 18 of the Constitution.  It is a good practice because one of the advantages is that parties are given advanced notice and an opportunity to consider any questions that may arise for referral to the Supreme Court.  But at the same time, the use of a notice of motion should not grant licence to litigants to use as a short-cut to avoid a direct application to the Supreme Court using the criteria set by the Court in Kenn Mondiai case (supra).

36.	Parties should not unnecessarily raise issues which they think raise constitutional issues for the Supreme Court to determine and delay proceedings.  Similarly, they should not raise issues prematurely. And the Court should not be overly burden with requests for referral to the Supreme Court because of motions being filed and expected to be heard.  

37.	But there would be cases where a Judge may overlook a question(s) that may not be trivial or irrelevant and require interpretation by the Supreme Court.  It may be appropriate for a party who forms that view to raise it by way of a motion.  In the final analysis, given the wide discretion the Court has under Section 18, I do not believe that it should prescribe a procedure and mode of initiating the referral process.  And I would not endorse or recommend the procedure and mode adopted by the first respondent to parties but leave it to the sole discretion of the Judge to determine on a case by case basis.

38.	For now, I will approve the motion as being competent.  I will now hear parties on the question of referral.  

Order

39.	The objection to the competency of the first respondent’s motion in EP No 78 of 2017 proceeding is dismissed.  

40.	As to costs, given the wide discretion the Court has under Section 18, I am satisfied that in EP No 78 of 2017 proceedings, the petitioner’s objection is not misconceived but worthy of consideration.  For this reason, each party will bear its own costs of the objection.

41.	As to EP No 79 of 2017 proceeding, since the petitioner supported the objection by the petitioner in EP No 78 of 2017, for the reasons given above, each party will bear its own costs of the objection.

Ruling and orders accordingly.
__________________________________________________________
Yansion Lawyers:     Lawyers for Petitioner
Baniyamai Lawyers:   Lawyers for First Respondent
Kongri Lawyers:	      Lawyers for Second Respondent (EP No 78 of 2017) 
Harvey Nii Lawyers:  Lawyers for Second Respondent (EP No 79 of 2017)