SC2724
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SC REF NO 5 OF 2024

REFERENCE BY THE MOUNT GILUWE 
RURAL LOCAL-LEVEL GOVERNMENT 

RE SECTION 34(1) OF THE ORGANIC LAW ON PROVINCIAL GOVERNMENTS AND LOCAL-LEVEL GOVERNMENTS & RELATED CONSTITUTIONAL LAWS 

WAIGANI: CANNINGS ACJ, DAVID J, HARTSHORN J

10, 11 APRIL 2025

SUPREME COURT – practice and procedure – interim orders to prevent prejudice to claims of parties – jurisdiction to grant interim orders in matters within the original jurisdiction of Supreme Court – Supreme Court Rules, Order 3 rule 2 – application by referrer in a s 19 Constitution reference regarding election of Local-level Governments to stay forthcoming Local-level Government elections.

The referrer in a s 19 Constitution reference regarding s 34(1) of the Organic Law on Provincial Governments and Local-level Governments and related Constitutional Laws applied for an interim order to stay the forthcoming general election for Local-level Governments. The application was supported by one of the interveners and opposed by another intervener. 

Held: 

(1)	Order 3 rule 2(b) of the Supreme Court Rules allows the Court to make “an interim order to prevent prejudice to the claims of the parties” in any matter within the original jurisdiction of the Court. A reference under s 19 of the Constitution is a matter within the Court’s original jurisdiction. Therefore the present application was properly before the Court.

(2)	The criteria to be applied in deciding whether to grant an interim order: (a) whether the orders sought are consistent with the grant of constitutional powers under the Constitutional Laws; (b) whether there are serious constitutional issues raised in the reference; (c) whether, if the interim order is not granted, prejudice would be suffered by the referrer in the performance of its public functions; (d) whether the balance of convenience favours the granting of the interim order; (e) whether the status quo should be preserved.

(3)	Applying the criteria to the present case: (a) granting the interim order would interfere with the discharge of constitutional powers and functions by the Electoral Commission; (b) the reference raises serious constitutional issues; (c) no prejudice would be suffered by the referrer, a local-level government, if the interim order is not granted; (d) the balance of convenience does not favour granting an interim order; (e) granting an interim order would disrupt the status quo for no good reason. 

(4)	All criteria except (b) do not favour granting the interim order. The application was therefore refused. 

Cases cited
Skate v Nape (2004) SC1458
SC Ref No 1 of 2010, Reference by the Ombudsman Commission re Constitutional (Amendment) Law 2008 (2010) SC1027
Kakaraya v National Parliament (2004) SC752
SC Ref No 2 of 2019, Reference by the Ombudsman Commission re ss 105 and 187C of the Constitution (2019) SC1821

Counsel
D Gonol for the referrer, the Mount Giluwe Rural Local-level Government
T Mileng & R Mobiha for the first intervener, the Attorney-General
R Pato & C Mark for the third intervener, the Morobe Provincial Executive 

1.       BY THE COURT: The Mount Giluwe Rural Local-level Government (the referrer) has filed a reference under s 19 of the Constitution, seeking the Supreme Court’s binding opinion on 19 questions of constitutional interpretation and application regarding s 34(1) of the Organic Law on Provincial Governments and Local-level Governments and related Constitutional Laws. 

2.     Section 34(1) provides that the term of a Local-level Government shall be generally the same as and run concurrently with the term of the National Parliament. The referrer asks amongst other things whether the delay in conducting a general election for Local-level Governments, which has extended for more than two years after the 2022 general election for the National Parliament, is unconstitutional, and if it is, what consequences there are in terms of the current membership of all Local-level Governments in the country.

3.     Three parties have been granted leave to join the proceedings as interveners:

the Attorney-General, the Honourable Pila Niningi MP, first intervener;
the Electoral Commissioner, second intervener; and
the Morobe Provincial Executive, third intervener.

4.     The reference was filed on 16 July 2024 and has not yet been heard. In the meantime arrangements have been made for the conduct of a general election for Local-level Governments. The writs for it are due to be issued on 24 April 2025.

5.      On 25 March 2025 the referrer filed an application for an interim order to stay the conduct of the forthcoming general election for Local-level Governments. We heard the application yesterday. The first intervener opposes the application and the third intervener supports it. It would have been good to know the position of the second intervener, the Electoral Commissioner, on the application. Unfortunately there was no appearance by the second intervener at the hearing. We now rule on the application.

JURISDICTION

6.     There have been several cases in which the Court has entertained this sort of application for interim orders prior to hearing of matters within its original jurisdiction, including Kakaraya v National Parliament (2004) SC752, Skate v Nape (2004) SC1458, SC Ref No 1 of 2010, Reference by the Ombudsman Commission re Constitutional (Amendment) Law 2008 (2010) SC1027 and SC Ref No 2 of 2019, Reference by the Ombudsman Commission re ss 105 and 187C of the Constitution (2019) SC1821.

7.      Order 3 rule 2(b) of the Supreme Court Rules allows the Court to make “an interim order to prevent prejudice to the claims of the parties” in any matter within the original jurisdiction of the Court. A reference under s 19 of the Constitution is a matter within the Court’s original jurisdiction. The present application is properly before the Court. We have jurisdiction to make the order sought.

CRITERIA

8.     Previous cases show that the criteria to be applied in deciding whether to grant an interim order in the context of a s 19 Constitution reference are: 

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

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

(c) whether, if the interim order is not granted, prejudice would be suffered by the referrer in the performance of its public functions; 

(d) whether the balance of convenience favours the granting of an interim order; and

(e) whether the status quo should be preserved.

DETERMINATION 
    
9.     Applying the relevant criteria to the present case: 

(a) Granting the interim order would interfere with the discharge of constitutional powers and functions by the Electoral Commission. It is a significant order for the Court to make and the Court ought not grant such orders too freely. Constitutional institutions such as the Electoral Commission have important functions to discharge. Constitutional processes ought not lightly be interfered with. Special reasons must be provided to justify such interferences. None have been provided in this case. 

(b) The reference raises serious constitutional issues. Yes, that appears to be so. But that alone does not warrant an interim order that would stay the constitutional process of conducting the general election for Local-level Governments, a process that has been already delayed – arguably unconstitutionally – for more than two years.

(c) We are not persuaded by the submissions of Mr Gonol, for the referrer, that any prejudice will be suffered by the referrer, a local-level government, if the interim order is not granted. Mr Pato, for the third intervener, submitted that his client stands a high risk of prejudice as it is conceivable that the provincial assembly for Morobe Province, which is the country’s largest, would be left without a majority of its members (35 presidents of Local-level Governments situated in Morobe) if the general election for Local-level Governments goes ahead, but is ultimately found by the Supreme Court’s determination of the reference to be unconstitutional, as this would mean that all those members of Local-level Governments elected in the 2025 elections would be holding office unconstitutionally. We are not persuaded by that argument either, for two reasons. First, it is the risk of prejudice to the referrer that is the relevant consideration, not the risk of prejudice to an intervener. Perhaps the third intervener ought to have applied for an interim order to stay the elections. If it did, the risk of prejudice to its interests would have been relevant. But it did not, so the risk of prejudice to its interests is irrelevant. Secondly, none of the 19 questions directly ask whether the forthcoming general election for Local-level Governments should be declared unconstitutional. 

(d) The balance of convenience does not favour granting an interim order. The referrer has failed to show to our satisfaction that an interim order is necessary to sustain the case that will be put to the Court in the reference. We tend to find some merit, at first glance, in the submissions of Mr Mileng, for the first intervener, that a number of the 19 questions are vague and perhaps trivial or perhaps will not warrant detailed consideration by the Court. We do not see a clear connection between the relief (ie the answers to the 19 questions) being sought in the reference and the need for an interim order of the type sought by the referrer. The referrer has failed to demonstrate why an interim order staying the conduct of the forthcoming general election for Local-level Governments is necessary or desirable. 

(e) Granting an interim order would, in our view, disrupt the status quo for no good reason. None of the questions raised in the reference seek an answer that the forthcoming general election for Local-level Governments will be unconstitutional. 

10.     In summary, all criteria except (b) do not favour granting the interim order. The application will be refused. 

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

ORDER 

1.	The application for an interim order filed 25 March 2025 by the referrer is refused.

2.	The parties shall bear their own costs of the application.
____________________________________________________________
Lawyers for the referrer:		Danny Gonol Lawyers
Lawyer for the first intervener:	Solicitor-General
Lawyers for the third intervener: Steeles Lawyers