Papua New Guinea Law Reports - 1987
[1987] PNGLR 31
SC330
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCR NO 2 OF 1987 SPECIAL REFERENCE PURSUANT TO CONSTITUTION, SECTION 19
REFERENCE BY ROBERT HENRY SEETO, MEMBER FOR WEST COAST NAMATANAI IN THE NEW IRELAND PROVINCIAL ASSEMBLY AND FORMER PREMIER
Waigani
Amet Barnett Wilson JJ
1 April 1987
CONSTITUTIONAL LAW - Constitution of The Independent State of Papua New Guinea - Special reference under s 19 - What constitutes - Relating to “a Constitutional Law” - Only applies to National Constitution - Provincial Government constitutions not “Constitutional Law” - Reference incompetent - Constitution, ss 12, 13, 19, Sch 1.2 - Constitution of the Niu Ailan Province - Organic Law on Provincial Government (Ch No 1).
PRACTICE AND PROCEDURE - Supreme Court - Special reference under s 19 of Constitution - What constitutes - “Constitutional Law” - Constitution, ss 12, 13, 19, Sch 1.2.
A special reference to the Supreme Court under s 19(1) of the Constitution on “any question relating to the interpretation or application of any provision of a Constitutional Law...” may be made only in respect of a Constitutional Law as defined by and related to the Constitution of The Independent State of Papua New Guinea.
Accordingly, the Constitution of a provincial government, whilst attracting the status of an Organic Law under s 13 of the Organic Law on Provincial Government (Ch No 1) is not an Organic Law within s 12 of the Constitution and is therefore not a Constitutional Law for the purposes of s 19(1) of the Constitution and a special reference in respect of the Constitution of the Niu Ailan Province was therefore incompetent.
Special Reference under s 19 of the Constitution
This was a Special Reference under s 19 of the Constitution seeking determination of questions in relation to the Constitution of the Niu Ailan Province.
Counsel
B B Sakora, for the referror.
T A Doherty, for the objector.
Cur adv vult
1 April 1987
AMET BARNETT WILSON JJ: The issue before the court for decision was the competency of the Special Reference under s 19 of the Constitution.
Following the presentation of comprehensive arguments relating to grounds (1) and (2) of the notice of objection to competency (full details of which are set out later) the court delivered its judgment in the following terms:
“Order: This is a Special Reference by Robert Henry Seeto, Member for West Coast Namatanai in the New Ireland Provincial Assembly and former Premier.
Pedi Anis, Premier of New Ireland Province and the Respondent filed a Notice of Objection to the competency of the reference on two (2) grounds:
(1)      That Referror had no standing to make this reference pursuant to Section 19(3) of the National Constitution;
(2)      That the questions referred do not involve interpretation or application of a Constitutional law within the meaning of Section 19(1) of National Constitution.
The Court is of the opinion that the questions referred do not relate to the interpretation or application of a Constitutional Law, within the meaning of Section 19(1) of the Constitution and so the Reference is incompetent and therefore dismissed.
Full reasons are to be published later.
Costs follow the cause.”
The reasons are now set out.
Before proceeding to the reasons it is necessary to set out the terms of the Special Reference:
“Special Reference: THIS REFERENCE is made by Robert Henry Seeto, Member for West Coast Namatanai in the New Ireland Provincial Assembly and a former Premier of the New Ireland Provincial Government, an authority entitled to make an application under Section 19 of the Constitution for an Opinion on a question relating to the interpretation or application of a Constitutional Law.
THIS REFERENCE arises from the purported calling of the first meeting of the New Ireland Provincial Assembly and the purported elections of the Speaker, the Premier, the Deputy Premier and the Deputy Speaker on Thursday the 15th day of January 1987 following the return of the writs, on Wednesday the 14th day of January 1987, of the New Ireland Provincial Government general elections, and the purported formation of the Government by the members of the Melanesian Alliance — Pangu Party Group in the said Assembly.
THE CONSTITUTIONAL LAW provisions, relevant are:
1.       The Constitution of the Niu Ailan Province Section 23 — Speaker and Deputy Speaker.
2.       The Constitution of the Niu Ailan Province Section 24 — Meetings of the Provincial Assembly.
3.       The Constitution of the Niu Ailan Province Section 26 — Quorum.
4.       The Constitution of the Niu Ailan Province Section 27 — Voting in the Assembly.
5.       The Constitution of the Niu Ailan Province Section 29 — Standing Orders.
6.       The Constitution of the Niu Ailan Province Section 34 — The Premier.
7.       The Constitution of the Niu Ailan Province Section 36 — Deputy Premier.
THE QUESTIONS referred under Section 19 of the Constitution are:
1.       What is a reasonable time within which to call the first meeting of the Provincial Assembly following the return of writs of the Provincial Government general elections, and what constitute sufficient notice and service of notice for such meeting.
2.       Who is or are the proper authority or authorities to call the first meeting of the Provincial Assembly following the return of the writs of the Provincial Government general elections.
3.       Is the first meeting of the Provincial Assembly following the return of the writs of the Provincial Government general elections as provided for under Section 24(1)(a) of the Constitution of the Niu Ailan Province and Standing Order 2 under the said Constitution (Calling of Meeting) for the purposes of Standing Orders 3, 4, 5 and 6 (Members to be Sworn, Election of Speaker, election of Premier and Deputy Premier, and election of Deputy Speaker respectively) under the said Constitution constituted by one half of the elected members present and sworn in the absence of the other unsworn elected members or is it constituted by the attendance of all elected members duly sworn.
4.       And in addition to the question posed in paragraph 3 above, does the quorum provided for under Section 26 of the Constitution of the Niu Ailan Province refer only to the sittings of the Provincial Assembly for the purpose of duly discharging the legislative functions of the Assembly and not to the first meeting of the Provincial Assembly following the return of the writs of the Provincial Government general elections referred to in paragraph 3 above.
5.       If the answer to the question posed in paragraph 4 above is in the affirmative, are the subsequent elections of the four office-holders referred to in paragraph 3 above unconstitutional vis-á-vis the Constitution of the Niu Ailan Province.
6.       If the answer to the question posed in paragraph 3 above is that the first meeting of the Provincial Assembly following the return of the writs of the Provincial Government general elections, as envisaged by Section 24(1)(a) of the Constitution of the Niu Ailan Province, is constituted by the attendance in the Assembly of all elected members duly sworn, is the purported first meeting of the Assembly unconstitutional and therefore the subsequent elections of the four office-holders referred to in paragraph 3 above by only ten elected members in the absence of nine elected and unsworn members unconstitutional vis-á-vis the said constitution.
Dated the 29th day of January 1987
Bernard B Sakora
Lawyer, for and on behalf of Robert Henry
Seeto, an authority entitled to make this Reference.”
It is also necessary to set out the terms of the notice of objection to competency:
“Notice of Objection to Competency: Objection to the Competency of this reference will be made at the Supreme Court, Waigani at 9.30 am on the 30th day of March 1987.
OBJECTION is made on the following grounds:
(1)      The reference has not been made by an authority entitled to make a reference pursuant to Section 19(3) of the Constitution.
(2)      The questions are not questions relating to the interpretation of a Constitutional Law.
(3)      The reference raises issues of fact which facts have not been determined.
Dated the 2nd day of February 1987.
TERESA ANNE DOHERTY
Lawyer for Pedi Anis
A person served with proceedings in this Reference.”
The Reference is brought under the provisions of s 19(1) of the Constitution of The Independent State of Papua New Guinea, which provides as follows:
“S19   SPECIAL REFERENCES TO THE SUPREME COURT (1) Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.”
Ground (2) of the notice of objection to competency raised the issue of whether the matters included in the Reference related to interpretation of a Constitutional Law. Depending on the Court’s answer to this ground the question of standing of the referror may or may not have required resolution.
Ms Doherty submitted that the Reference involved issues solely relating to the interpretation of the Constitution of the Niu Ailan Province and that no issue of a Constitutional Law as it relates to the Constitution of Papua New Guinea was raised by the Reference.
Mr Sakora, for the referror, submitted that the words “a Constitutional Law” in s 19(1) of the Constitution should be given a broad and liberal interpretation so that any issue which required the interpretation of a constitution, rather than the Constitution of Papua New Guinea, could be referred to the Supreme Court under s 19(1) of the Constitution.
The second leg of Mr Sakora’s submissions was that s 13 of the Organic Law on Provincial Government (Ch No 1) brought the Constitution of Provincial Governments within the definition of “Constitutional Law” as set out in Sch 1.2 of the Constitution of Papua New Guinea.
Sch 1.2 defines “Constitutional Law” as follows:
“ `Constitutional Law’ means this Constitution, a law altering this Constitution or an Organic Law.”
Section 13 of the Organic Law on Provincial Government is as follows:
“S13   LEGAL STATUS OF PROVINCIAL CONSTITUTIONS The Constitution of a Province that has come into effect in accordance with Section 7 takes effect for the purposes of any law of Papua New Guinea as if it were an Organic Law, but may be altered only in a manner prescribed by Section 11.”
Section 11 of the Organic Law is in these terms:
“S11   ALTERATION OF PROVINCIAL CONSTITUTIONS Subject to this Organic Law and to Section 100(3) (exercise of the legislative power) of the National Constitution, the constitution of a province may be repealed or otherwise altered only:
(a)      in accordance with its provisions; or
(b)      by an Organic Law.
Under the National Constitution “Organic Laws” are covered by s 12 in the follow terms:
“S12   ORGANIC LAWS:
(1)      For the purposes of this Constitution, an Organic Law is a law made by the Parliament that is:
(a)      for or in respect of a matter provision for which by way of an Organic Law is expressly authorized by this Constitution; and
(b)      not inconsistent with this Constitution; and
(c)      expressed to be an Organic Law.
(2)      An Organic Law may be altered only by another Organic Law, or by an alteration to this Constitution.
(3)      Nothing in this section prevents an Organic Law from:
(a)      making any provision that might be made by an Act of the Parliament; or
(b)      requiring any provision to be made by an Act of Parliament that might otherwise be so made,
but any such provision may be altered by the same majority that is required for any other Act of the Parliament.”
It is clear from the terms of the Special Reference that there is no issue which would involve the interpretation of the National Constitution.
We are of the clear view that the result, on a proper construction of s 12 of the National Constitution, is that Provincial Constitutions, while attracting the status of Organic Laws under s 13 of the Organic Law on Provincial Government are not Constitutional Organic Laws.
The purpose of s 13 of the Organic Law on Provincial Governments is to protect the Provincial Constitutions from amendment by the National Government, except by an Organic Law, and also to delineate their status in the legislative hierarchy.
The fact that these features are attached to Provincial Constitutions does not then attract to them the full features of Constitutional Organic Laws as they do not comply with the provisions of s 12 of the National Constitution. In simple terms Provincial Constitutions are not laws made by the National Parliament under its power to make Organic Laws.
Apart from giving a clear meaning to the words of s 19(1) of the National Constitution, which process would result in an unambiguous interpretation that would limit the words “Constitutional Law” to National Constitution issues, if there be any doubt the following paragraphs of the Constitution Planning Committee Report put it beyond dispute:
“Advisory Opinions — Ch 8
150.    A common device to get round the technical rules which restrict access to courts (as well as for other objectives) is to vest the jurisdiction to give an advisory opinion on constitutional issues in the courts. Under such a procedure specified bodies are authorised to refer a matter to the court for its opinion. It is not always necessary that a dispute should have arisen; an institution may wish to have an authoritative ruling on a constitutional point before embarking on a particular piece of legislation or a certain policy. It is flexible in that a party or parties can define clearly and precisely the issues on which they need a ruling, and yet the ruling is, strictly speaking, not binding.
151.    While this procedure has these advantages, it has been criticised on the ground that in view of the crucial importance of the facts of a case a court performs its functions best when it has an actual and specific dispute before it. It is also said that if such a procedure exists, political and administrative institutions are tempted to avoid their own responsibilities of decision-making by referring contentious issues to courts. It is further argued that courts may be caused embarrassment under such a procedure if, for example, a case is brought to court under its ordinary jurisdiction on a point which it has already given an advisory opinion.
152.    Experience in countries which do permit judicial advisory opinions shows that such criticisms are not justified. In any case, we consider that the advantages outweigh the possible disadvantages and we recommend that provision be made for the Supreme Court to give an advisory opinion on any matter concerning any provision of the Constitution, including its implementation and enforcement.
153.    We envisage advisory opinions as serving two aims. An advisory opinion will help an institution charged with the enforcement of a constitutional provision or the executive to establish what the law on a particular constitutional point is. It should also help to resolve a dispute about what the constitutional law is on a particular issue before the dispute becomes aggravated and the parties to it take strong and inflexible positions. It is important, however, to regard the advisory opinion as a rather special procedure to be resorted to only in exceptional circumstances.
154.    Having given careful thought to who should be able to seek a judicial opinion, and on what matters, we consider that only the following institutions should be empowered to seek advisory opinions:
·         the first Parliamentary Committee (as the Permanent Parliamentary Committee charged with responsibility for constitutional affairs);
·         the National Executive Council;
·         the body charged with special responsibility in relation to the resolution of central-provincial government disputes; and
·         the body responsible for recommending changes in existing legislation to achieve conformity with the national goals and directive principles and the human rights and obligations incorporated in the Constitution.” (Our emphasis.)
As these paragraphs refer to the Constitution of Papua New Guinea it is clear that the procedure was to be limited to that constitution.
We therefore find no reason to extend the provisions of s 19(1) of the National Constitution to issues which solely involve the interpretation of a provincial constitution. Such questions should be raised in the National Court and can in the appropriate circumstances find their way to the Supreme Court through the usual appeal processes.
As we find that the Special Reference is incompetent as to jurisdiction it is not necessary for the issue of standing under s 19(3) of the National Constitution to be considered.
Orders as at 32
Lawyer for referror: Bernard B Sakora.
Lawyer for objector: Teresa A Doherty.