Court rejects Kobol’s objection

The Court of Disputed Returns has rejected an objection to competency filed by Joe Kobol.

This was against a notice of motion that was filed by Southern Highlands Governor William Powi.

Powi had filed a motion to refer 8 proposed questions to the Supreme Court for interpretation.

The motion is brought pursuant to section 18 of the Constitution.

The eight proposed questions relate to the proper exercise of power by the Electoral Commissioner to stop counting of votes and declare the first respondent, William Powi, as candidate elected under Section 175 of the Organic Law on National and Local Level Government Elections.

In proceeding election petition or EP 78 of 2017, by notice of motion filed on the 2nd of December 2017, petitioner Kobol objected to the competency of the first respondent’s motion.

The grounds were failure to seek leave prior to filing a notice of motion to bring an interlocutory application pursuant to Rule 22 of the National Election Petition Rule 2017 and 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.  

Presiding Judge, Justice Collin Makail, however dismissed the objection to competency filed.

He explained that the motion to refer the questions is good practice as it gives parties advanced notice and an opportunity to consider any questions that may arise for referral to the Supreme Court.

Justice Makail at the same time said the use of notice of motion should not grant license to litigants to use as a short cut to avoid a direct application to the Supreme Court using the criteria set by the Court.

He said 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 overburdened with requests for referral to the Supreme Court because of motions being filed and expected to be heard. 

“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,” said Justice Makail.

“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.”

Section 18 of the Constitution 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 questions relating to the interpretation or application of any provisions 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.

Justice Makail said section 18 however, does not prescribe a procedure by which the Court may refer a question or questions to the Supreme Court for interpretation.

“For instance, it does not make provisions for how to initiate the referral and by what mode. In my view it is a discretionary matter.”

The case therefore has been adjourned to the 26th of January to hear the 8 proposed questions and whether it can be referred to the Supreme Court or not.

Directions hearing for the election petition will commence once this hearing and decision of this case has been completed. 

Charmaine Poriambep