Papua New Guinea Law Reports - 1979
[1979] PNGLR 42
N184
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
IN THE MATTER OF S. 42(5) OF THE CONSTITUTION
AND IN THE MATTER OF A COMPLAINT THEREUNDER OF JACOB HENDRICH PRAI AND OTTO ONDOWAME
Waigani
Greville Smith J
23 February 1979
2 March 1979
CONSTITUTIONAL LAW - Practice and procedure - Complaint alleging unlawful detention under s. 42(5)[lii]1 of Constitution - Detention pending deportation - Allegation that detention unlawful under ss. 38 and 41 of Constitution - Whether matters should be referred to Supreme Court under s. 18[liii]2 of Constitution - National Court under s. 42(5) of Constitution required to hear and determine complaints - Section 18(2) “subject to constitution” - National Court not bound to refer matters - Application refused.
CONSTITUTIONAL LAW - Practice and procedure - Bail - Complaint alleging unlawful detention under s. 42(5) of Constitution - Whether power in National Court to order bail pending and during inquiry into complaints.
On complaints made to a judge of the National Court under the provisions of s. 42(5) of the Constitution of the Independent State of Papua New Guinea by two persons kept in custody pending deportation from Papua New Guinea under the provisions of s. 17 of the Migration Act 1963, on the ground that such detentions were unlawful under the provisions of ss. 38 and 41 of the Constitution, application was made to refer the matters to the Supreme Court, it being argued that as the matters raised a question relating to the interpretation or application of a provision of a Constitutional law, they ought to be referred to the Supreme Court pursuant to s. 18(2) of the Constitution:
Held
(1)      Section 42(5) of the Constitution authorizes and requires the National Court or a judge, to hear to conclusion, and subject to appeal, finally determine, a complaint alleging that a person is unlawfully or unreasonably detained.
(2)      Accordingly, as s. 18(2) is expressed to be subject to the Constitution, the court was not bound to refer the complaints, or either of them to the Supreme Court.
The State v. Peter Painke (No. 2), [1977] P.N.G.L.R. 141, at p. 145, and The State v. Kwambol Embogol, unreported (judgment N. 91, 7th April, 1977, at p. 6), applied.
(3)      Semble, in such circumstances the National Court is not precluded from seeking the guidance of the Supreme Court, pursuant to s. 5 of the Supreme Court Act 1975 on a matter of law only.
(4)      The application to refer the complaints to the Supreme Court should be refused.
(5)      Semble, whilst an inquiry into a complaint is being undertaken pursuant to s. 42(5) of the Constitution, there is no power in the National Court under that section to allow bail pending or during the inquiry.
Interlocutory Rulings
On the hearing of complaints under the provisions of s. 42(5) of the Constitution, by two persons kept in custody pending deportation, application was made to have the matters transferred to the Supreme Court pursuant to s. 18(2) of the Constitution.
Counsel
D. B. Brunton, for the complainants.
D. W. Baker, for the National Executive.
Cur. adv. vult.
2 March 1979
GREVILLE SMITH J: Section 42 of the Constitution of the Independent State of Papua New Guinea provides that no person shall be deprived of his personal liberty except in certain situations or for certain purposes specified therein, one of these being (s. 42(1)(g)) the purpose of effecting the expulsion or other lawful removal of a person from Papua New Guinea.
Subsections (5) and (6) of s. 42 provide as follows:
“(5)    Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained:
(a)      the National Court or a Judge shall inquire into the complaint and order the person concerned to be brought before it or him; and
(b)      unless the court or Judge is satisfied that the detention is lawful and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit.
(6)      A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.”
Jacob Hendrich Prai and Otto Ondawame are at present each deprived of his personal liberty by being held in custody pending deportation under the provisions of s. 17 of the Migration Act 1963 as amended which provides as follows:
“17.    Where the High Commissioner has made an order under this Act for the deportation of a person, that person shall, unless the order is revoked, be deported accordingly, and may:
(a)      pending deportation and until he is placed on board a vessel for deportation;
(b)      at a port in Papua New Guinea at which the vessel calls after he has been placed on board; and
(c)      on board the vessel until its departure from its last port of call in Papua New Guinea,
be kept in such custody as the High Commissioner directs.”
Each of the abovenamed persons has made complaint under the provisions of s. 42(5) aforementioned that he is unlawfully detained and I have in consequence, as required by that subsection, ordered such persons to be brought before me, which has been done, and have commenced an inquiry into their complaints as also required by the provisions of sub-s. (5).
The complainants are represented by counsel and each says that his detention is unlawful because, as he contends, s. 19 of the Migration Act 1963 fails to comply with the requirements of s. 38 of the Constitution and is thus rendered totally invalid by virtue of the provisions of s. 10 of the Constitution which provides, “inter alia” that all written laws shall be read and construed subject to the Constitution.
The complainants say also that if their detention is not unlawful by reference to s. 38 of the Constitution then it is unlawful by reference to s. 41 of the Constitution which provides:
“41.    Proscribed acts
(1)      Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:
(a)      is harsh or oppressive; or
(b)      is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or
(c)      is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,
is an unlawful act.
(2)      The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.
(3)      Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.”
At the close of the initial submissions on behalf of the complainants counsel for the National Executive applied for a reference of the complaints to the Supreme Court and submitted firstly that I am as a matter of law bound under the provisions of s. 18 of the Constitution so to refer the complaints or alternatively that I should do so in the exercise of a discretion. Counsel for the complainants did not oppose reference to the Supreme Court or make any submission in respect to the law relating to such matter except to submit that in the event of such a reference the complainants should be granted bail which, he submits, s. 42(5) authorises.
Section 18 of the Constitution provides as follows:
“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.” The emphasis is mine.
On the question of whether I am bound by the provisions of s. 18 to refer the matter to the Supreme Court I make mention of two judgments of persuasive authority. In The State v. Kwambol Embogol[liv]3 O’Meally A.J. said as follows:
“Section 18(1) of the Constitution provides that 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. At first glance this provision would seem to require that whenever in any case in any court, other than the Supreme Court, a question arises which requires the application of any provision of the Constitution the matter must be referred to the Supreme Court. If that were the true position the provisions of sections, e.g. 22, 23, 39 42 and 57 would be of no effect. However, s. 23 with which we are presently concerned here expressly confers upon the National Court power to make Orders and I do not think the framers of the Constitution intended that when one of those provisions of the Constitution was to be applied it could only be done by Order of the Supreme Court. The Constitution itself authorises the National Court to apply certain of its provisions including those contained in s. 23.”
In that case his Honour excluded, in the exercise of his discretion, a record of interview on the ground that rights conferred by s. 42 of the Constitution had been denied the accused. In The State v. Peter Painke (No. 2)[lv]4 in respect of an application made under s. 57 of the Constitution or alternatively under s. 22 of the Constitution to discharge an accused on the ground that he had not been brought to trial within a reasonable time, contrary to s. 37(3) of the Constitution, Frost C.J. said, obiter:
“Whilst it is unnecessary to express any opinion on the first ground I should refer to the useful arguments raised by both counsel. If a breach of s. 37(3) was proved, counsel for the accused sought an order pursuant to the Constitution, s. 57(1) and (3) or s. 22, enforcing the accused’s Constitutional right. Section 18(1) of the Constitution confers exclusive jurisdiction on the Supreme Court as to any question relating to the interpretation or application of any Constitutional law. But both counsel agreed that as that section is expressed to be subject to the Constitution, and as under ss. 57(1) and 22 it was envisaged that such a question fell within the jurisdiction of both the National Court and the Supreme Court, there was no requirement to refer to the Supreme Court any question relating to the application and interpretation of s. 37(3). I consider this view to be correct. It does not seem to me possible for the National Court to exercise its jurisdiction under s. 57(1) and (3) to make an order which is necessary for the protection of a Constitutional right or freedom unless that Court both interprets and applies the relevant Constitutional provision.”
I agree, with respect with the reasoning evident in the foregoing excerpts and, following the same line, I hold that I am not obliged by s. 18 to refer the matter of these two complaints, or either of them, to the Supreme Court and that I am authorised and indeed required by the imperative terms of s. 42(5) as a Judge of the National Court to hear to conclusion and, subject to appeal, finally determine the matter of these two complaints. I would not, I think, be precluded from seeking the guidance of the Supreme Court under the provisions of s. 5 of the Supreme Court Act 1975, on a matter of law only, but that is not what the complainants seek. I therefore refuse the application to refer these matters to the Supreme Court.
In view of my refusal of the application to refer, the question of bail pending a hearing in the Supreme Court does not arise. It does not however, seem to me that sub-s. (5)(b) of s. 42 can itself, as counsel for the complainants would have it, be properly construed to confer on a judge before whom a complaint under the subsection is made a power to allow bail pending an inquiry under the subsection, or whilst such an inquiry is taking place, and sub-s. (6), which confers a general qualified right to bail, is expressed to apply only to “a person arrested or detained for an offence”, a category into which the complainants do not fall.
Ruled accordingly.
Solicitor for the complainants: B. D. Brunton.
Solicitor for the National Executive: B. W. Kidu.

[lii]Infra p. 43.
[liii]Infra p. 45.
[liv]Unreported. (Judgment N. 91, 7th April, 1977, at p. 6.)
[lv][1977] P.N.G.L.R. 141, at p. 145.