By Dominic Krau

PORT MORESBY, Papua New Guinea (The National, Nov. 5) – The Papua New Guinea Supreme Court yesterday ordered that next Thursday's scheduled swearing-in ceremony of Governor General-elect Sir Albert Kipalan in Parliament be put on hold.

This is to allow the court to determine the substantive matters in the special reference brought by the Ombudsman Commission challenging the validity of Sir Albert's election.

The Supreme Court granted an interim order to delay the swearing-in following an application by the Ombudsman Commission.

The court ordered that the National Executive Council not nominate Sir Albert for appointment as Governor-General until the court determines the substantive merits of the proceedings.

Chief Justice Sir Mari Kapi said these orders were subject to further orders by the court.

The court is also expected to make a ruling on the standing of the plaintiffs, the Ombudsman Commission, Chief Ombudsman Ila Geno, and Bernard Narokobi, either today or tomorrow.

During a hearing on preliminary issues yesterday, Sir Albert's lawyer Loani Henao raised objections as to the standing of all three plaintiffs.

Mr Henao submitted that the Ombudsman's powers and functions were restricted and must be in accordance with section 219 of the Constitution.

He said it might seek an advisory opinion of the Supreme Court on any question relating to the interpretation or application of any provision of a constitutional law, including any question as to the validity of a law or proposed law.

But outside section 19, the Ombudsman must derive its powers to act in accordance with section 219 of the constitution, he said.

Mr Henao said neither this provision nor the Organic Law, either by an expressed provision or by implication, gives power to the Ombudsman to apply as a plaintiff for declaratory orders as to the validity of action of legislature.

"Therefore the Ombudsman Commission has no right to seek such orders in this action and it follows that it has no standing in these proceedings," Mr Henao said.

He said the Chief Ombudsman Ila Geno was in no better position than the Ombudsman Commission as plaintiff in his official capacity.

Mr Geno has no standing in these proceedings by operation of section 210 of the constitution and section 13 of the Organic Law, Mr Henao said.

The Ombudsman Commission had originally filed a special reference under section 19 of the Constitution to have the Supreme Court resolve the important legal issues, however, the reference was converted into a special reference under section 18(1) of the Constitution on Oct 31.

Ombudsman Commission senior legal counsel David Cannings said in response to Mr Henao's objections that it made no sense to disqualify the Ombudsman Commission on basis of lack of understanding.

He said there was no legal basis to disqualify the Ombudsman Commission and the legal issues raised in reference center on the possible irregularities arising from the alleged failure of the Clerk of Parliament to comply with the provisions of the Organic Law on the Nomination of the Governor General.

November 6, 2003

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