The National – Thursday, December 23, 2010
By JULIA DAIA BORE
THE government has failed in its bid to get the Supreme Court to review its decision directing parliament to meet within 40 days to elect a new governor-general.
On Dec 10, the Supreme Court ruled the election of Sir Paulias Matane on June 25 unconstitutional, and instituted a 40-day directive.
Parliament rose last month but not before adjourning to May, ensuring that (sidelined) Prime Minister Sir Michael Somare did not face a vote of no-confidence.
However, there was fear that a motion might be introduced when parliament convenes as directed by the high court.
Furthermore, Sir Michael’s referral to the chief justice and his subsequent sidelining, coupled with the recent cabinet reshuffle, had placed the government on shaky grounds.
Acting Speaker Francis Marus had filed a Supreme Court reference to amend certain words in the Dec 10 court ruling, effectively removing the requirement to meet within 40 days.
But the Supreme Court yesterday dismissed the application, saying that the matter had not been appropriately brought before it.
The court said: “The reason we set a 40-day time limit was to give real meaning and effect to the words ‘as soon as practicable’ in section 88(4). Just as the Supreme Court did in the special reference by the Ombudsman Commission in 1999 (SC628) and another reference by the GG (2002) and reference No.3 of 2000; where it interpreted the practical meaning of the requirement that parliament meet in ‘nine weeks’ in each parliamentary year.”
Chairman of the panel Justice Bernard Sakora said in this case, “we stated a minimum requirement in the circumstances of this particular case of what ‘as soon as practicable’ means”.
Other panel members included justices Elenas Batari, David Cannings, George Manuhu and Sao Gabi.
They said Marus’ application was not competent and lacked compliance with the requirements of section 19 of the constitution and, therefore, was not properly brought before it.
It was also described as an abuse of process.
Sakora said: “When a person or institution makes a reference to the court (under sec 19), it must be properly authorised and signed.
“The signing requirement is, due to the special nature of a section 19 reference, is critical. It is a check and balance against the making of bogus or unauthorised reference.”
The court stated that Marus’ lawyer did not represent the national parliament in the initial proceeding, from which the decision on the interpretation, sought by the Morobe provincial government, had found the reappointment of Sir Paulias as unconstitutional and, therefore, invalid.
“The same principles must apply when a party comes before the court with an application for the court to “correct” an opinion made on a section 19 reference.
“The present application fails on both counts,” Sakora said.
Following the delivery of the court’s decision, the panel chairman said: “This highlights what is an unhealthy culture in this jurisdiction.
“And, that has a real potential to impact adversely on the integrity of the legal profession – our legal judicial system – exposing, once again, the need for lawyers, and those who think they are lawyers, to read and understand judgments and decisions and opinions and consequential orders of our superior courts properly and intelligently.”
The 40-day period given by the court for parliament to sit expires on Jan 22.