SCR No 4 of 1990; Reference by the Acting Principal Legal Adviser [1994] PGSC 17; [1994] PNGLR 141 (11 January 1991)

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[1994] PNGLR 141 - SC Reference No 4 of 1990; Reference by the Acting Principal Legal Adviser

SPECIAL REFERENCE PURSUANT TO SECTION 19 OF THE CONSTITUTION IN THE MATTER OF A REFERENCE BY THE ACTING PRINCIPAL LEGAL ADVISER RE MEETING OF PARLIAMENT

CONSTITUTIONAL LAW - Meetings of the Parliament - Three times in each period of 12 months - Periods commence on day after day fixed for return of writs for general election - Constitution s 124.

CONSTITUTIONAL LAW - Interpretion - When section provides no guidance - Constitution a coherent document - Provisions not intended to conflict - Reference to other sections to assist interpretation of section where intention not clear.

UNDERLYING LAW - Intention of provision not clear - Use of Sch 2.3 to develop rule of underlying law.

CONSTITUTIONAL LAW - The Parliament - Nine weeks of meetings in each 12 months - "In principle" requirement - Directory, not mandatory - Constitution s 124.

CONSTITUTIONAL LAW - The Parliament - No duty on any office to ensure three meetings held in each 12-month period - Constitution s 124.

The Attorney-General, as principal legal adviser to the National Executive, made a reference pursuant to s 19 of the Constitution for an opinion concerning the meaning of requirements of s 124 of the Constitution. That section provides inter alia, for the Parliament to meet "not less frequently than three times in each period of 12 months, and, in principle, for not less than nine weeks in each such period." The reference was made after the Leader of the Opposition and Deputy Leader of the Opposition took out proceedings in the National Court challenging the validity of a decision of the Parliament to adjourn from 7 November 1990 until 16 July 1991. The reference sought the opinion of the Court on three questions. The first concerned when the "period of 12 months" referred to in s 124 begins and ends. The second question asked whether there was a duty on the Speaker of the National Parliament and the National Executive Council to ensure that the Parliament meets as frequently and as long in each 12-month period as s 124 requires. The third question concerned the effect of a meeting of Parliament which begins in one 12-month period and ends after the commencement of the subsequent 12-month period.

N1>1. (Per Kidu CJ; Amet, Hinchliffe and Sheehan JJ) Although s 124 provides no guidance as to when the "period of 12 months" begins, the Constitution is a coherent document whose provisions are not intended to conflict with one another. The Court should use other relevant provisions of the Constitution to interpret the intention of provisions such as s 124. The provisions of ss 105, 142(5)(a), and 145 indicate that the phrase "each period of 12 months" used in s 124 relates to the whole period of the five-year life of an elected Parliament, which is divisible into five 12-month periods, the first of which commences on the day after the day fixed for the return of the writs for a general election.

(Per Kapi DCJ) As the Constitution, the Constitutional Planning Committee, and the debates of the Constituent Assembly do not provide assistance on the commencement of the "period of 12 months", there is a gap in the law which should be filled by formulating a rule of the underlying law under Sch 2.3 of the Constitution. In so doing, having regard to constitutions in Australia, Caribbean countries, and African countries, and the decision of the majority in this case, the first period of 12 months should commence on the day after the return of the writ after a general election.

N1>2. (Per Kidu CJ; Amet, Hinchliffe and Sheehan JJ) The requirement in s 124 that the Parliament meet not less than nine weeks in each period of 12 months applies "in principle" only. In the light of the definition of that phrase in Sch 1.6, the requirement is directory rather than mandatory. Compliance is the independent prerogative of Parliament.

(Per Kapi DCJ) In the light of Sch 1.6(b), the Parliament must aim to comply with the requirement of nine weeks of meetings in a 12-month period, and any lesser period must "not be inconsistent" with the requirement of nine weeks. The question of whether there might be a remedy in respect of alleged breach of the requirement should be left open to future consideration.

N1>3. No duty is imposed by s 124 on any person, office, or institution to ensure that the Parliament complies with the requirement to meet three times in each period of 12 months. Under s 124 and the Organic Law on the Calling of Meetings of the Parliament, duties may be imposed on the Head of State, the National Executive Council, the Speaker, and the Parliament to ensure meetings are held. Depending on the circumstances, they may have obligations to ensure Parliament is called for the mandatory three meetings.

N1>4. Where a meeting of the Parliament starts in one 12-month period and ends after commencement of the subsequent 12-month period, only one meeting is held, and it is to be regarded as held in the 12-month period in which it commences.

KIDU CJ AMET HINCHLIFFE SHEEHAN JJ: In this reference pursuant to s 19 of the Constitution, the Principal Legal Adviser to the National Executive, the Attorney-General, asked the Court to give its opinion on the following questions:

N2>Question 1. In s 124 of the Constitution, do the words "shall meet not less frequently than three times in each period of 12 months" mean:

(a) the period of 12 months commencing from the day after the day fixed for the return of the writs following a general election and ending 12 months after that date; or

(b) the period of 12 months commencing from the date of the first meeting of the Parliament following a general election and ending 12 months after that date; or

(c) any period of 12 months beginning with one meeting of the Parliament and ending with the third meeting of the Parliament; or

(d) the period of 12 months commencing on 1 January and ending on 31 December in each year?

to ensure that the Parliament meets not less than three times in each period of 12 months and, in principle, for not less than nine weeks in each such period?

N2>Question 3. With reference to, and for the purpose of, both Questions 1 and 2:

(a) if a meeting of the Parliament starts before the end of the "12-month period", as interpreted in Question 1, and ends after the commencement of the next "12-month period", are there two meetings, being one in each of the two "12 months period?

(b) if the answer is in the negative, in which "12-month period" does the meeting fall?

(1) The Parliament shall be called to meet not more than 21 days after the day fixed for the return of the writs for a general election, and shall meet not less frequently than three times in each period of 12 months, and, in principle, for not less than nine weeks in each such period. (emphasis added)

(2) An Organic Law shall make provision for the calling of meetings of the Parliament.

(3) Subject to Subsections (1) and (2), an Act of the Parliament or the Standing Orders of the Parliament may make provision in respect of the sittings of the Parliament."

N2>3. The 14th meeting of the fourth Parliament was called for 3 July 1990 and continued till 25 July 1990.

N2>4. The 15th meeting commenced on 6 November 1990 and was adjourned on 7 November 1990 until 16 July 1991.

N2>1. When the Parliament shall first be called to meet after a general election;

There is no dispute as to the first meeting after a general election. This is sufficiently enabled by s 1 of the Organic Law on the Calling of Meetings of the Parliament, which provides as follows:

(1) The Head of State shall, after consultation with the outgoing Prime Minister and Speaker, by notice published in the National Gazette after the date fixed for the return of the writs for the general election, fix the time and date on which the Parliament shall meet for the first time after a general election.

(2) The date fixed under Subsection (1) shall be not more than 21 days after the date fixed for the return of the writs for the general election.

(a) as soon as practicable after fixing a time and date under Subsection (1); and

cause a notice specifying that time and date to be forwarded by telegram or pre-paid post to each member of the Parliament."

As regards this first requirement, then, the Constitution and the Organic Law are in mandatory terms.

The second requirement, that Parliament shall meet not less frequently than three times in each period of 12 months, is also in unequivocally mandatory terms. That simply directs that Parliament shall meet a minimum of three times in each period of 12 months. That is the minimum; it may meet more than three times in each or any of the periods of 12 months, but Parliament cannot meet less than the minimum three times in each 12 month period. The dispute before us, of course is when does the period of 12 months commence? We shall return to that issue shortly.

The third requirement is that, in principle, Parliament is to meet for not less than nine weeks in each such period of 12 months. It was submitted by Mr Thompson QC, for the Leader and the Deputy Leader of the Opposition, that this requirement should also be interpreted to be mandatory, that Parliament shall or must meet for a minimum period of nine weeks in each such period of 12 months. Parliament may meet for a longer period, but it cannot meet for a lesser period in each 12 months. This contention can be addressed quickly.

We consider that the words "in principle" clearly qualify the requirement and make it directory only. Sch 1.6 of the Constitution supports this conclusion. It says:

"Where a provision of a Constitutional Law is expressed to state a proposition 'in principle', then:

(a) an act (including a legislative, executive or judicial act) that is inconsistent with the proposition is not, by reason of that inconsistency alone, invalid or ineffectual; but

(b) if the act is reasonably capable of being understood or given effect to in such a way as not to be inconsistent with the proposition it shall be so given effect to."

A very practical consideration, consistent with this view, is that it enables Parliament to determine its own timetable for the legislative program and the business it needs to deal with. If Parliament can adequately and expeditiously deal with all it's business in a lesser period than nine weeks, it surely must have the independence to do that. If Parliament has completed all its business in less than nine weeks, we can see no reason why it should be obliged to continue to sit unnecessarily. That would be an unreasonable and impractical compulsion. We do not consider that such an effect was intended by the founding fathers of the Constitution.

In fact, it was the intention of the Constitutional Planning Committee that the nine weeks be the minimum length of time Parliament should sit in a period of 12 months.

"In any period of twelve months there shall be at least three meetings of the National Parliament, and the meetings held shall have a total duration of at least nine weeks". (CPC Report, Ch 6, p 31 para 80)

But s 124 does not reflect this. It appears from the departure from the CPC Report that the founding fathers of the Constitution deliberately left the length of each sitting of Parliament to the discretion of Parliament itself.

As the stipulation is directory only, if it is not fulfilled, no punitive consequence follows. We do not believe it can be qualified any further. It is either directory for all purposes or mandatory in all circumstances. The proviso is not related to each meeting within a period of 12 months, but to the whole period. Under such circumstances, then, the courts cannot enquire into the reasons why meetings within the 12 month period were of less duration than the nine weeks. The compliance with the stipulation of the nine weeks is the independent prerogative of Parliament.

Section 124(1) provides that Parliament "shall meet not less frequently than three times in each period of 12 months". The section does not state in specific terms when "each period of 12 months" is to commence. But s 124 is not the only constitutional provision relating to Parliament that refers to a period of 12 months. As the Constitution is a coherent document, it can be readily inferred that its provisions are not intended to conflict with others. A review of those other provisions and an interpretation consistent with them must, therefore, resolve any uncertainty.

We are satisfied that, as a matter of construction policy, the Court can and indeed should refer to other relevant provisions of the Constitution to gain assistance in the task of interpretation, to ensure consistency in the interpretation and application of the Constitution as a whole.

We have, therefore, by reference to the other relevant provisions of the Constitution, formed the opinion that the phrase "each period of 12 months" relates to the whole period of the life of each elected Parliament.

The life of each elected Parliament is five years. Again, this is not stated in an express provision of the Constitution, but it is determined by s 105(1) of the Constitution. We set out the whole of that subsection, as we shall be referring to all of it. It provides as follows:

(a) within the period of three months before the fifth anniversary of the day fixed for the return of the writs for the previous general election; or

(b) if, during the last 12 months before the fifth anniversary of the day fixed for the return of the writs for the previous general election:

(i) a vote of no confidence in the Prime Minister or the Ministry is passed in accordance with Section 145 (motions of no confidence); or

(ii) the Government is defeated on the vote on a question that the Prime Minister has declared to the Parliament to be a question of confidence; or

"The relevant section relating to the First Parliament is s 269(4) as follows: The effect of this section is that the term of the First Parliament extends from Independence Day, 16th September 1975, until May or June, 1977, which is approximately 21 months, subject only to a general election under s 105.

This provision for the holding of elections is the section to which one must turn to discover the term of all Parliaments after the first Parliament, for there is no express provision in the Constitution providing that the term of such Parliaments shall be five years or any other period.

It will be noted that in paragraphs (1)(a) and (b) the time for the holding of a general election depends on the date fixed for the return of the writs for the previous general election".

"Under ss 105(1)(a) and 105(1)(b) the time for the holding of general elections is fixed by reference to the fifth anniversary of the day fixed for the return of the writs for the previous general election."

There is, therefore, certainty about the five-year life of each Parliament. And equally, there is certainty that the commencement date of the five-year term runs from the day after the day fixed for the return of the writs for a general election. From any analysis of relevant provisions of the Constitution, it becomes clear that this is the most important date around which the life and many important decisions affecting Parliament evolve.

N2>"(1) An elected member of the Parliament takes office on the day immediately following the day fixed for the return of the writ for the election in his electorate.

(b) upon the expiry of the day fixed for the return of the writs, for the general election after he last became a member of the Parliament ...."

A member of the Parliament thus, is elected to hold office, ordinarily, for the period of five years, commencing on the day immediately following the day fixed for the return of the writs.

The general elections requirement under s 105(1)(a) and (b) are fixed by reference to the fifth anniversary of the day fixed for the return of the writs for the previous general election.

The calling of the first meeting after a general election under s 124(1) is to be within 21 days after the day fixed for the return of the writs.

(a) shall be dismissed from office by the Head of State if the Parliament passes, in accordance with Section 145 (motions of no-confidence), a motion of no confidence in him or the Ministry, except where the motion is moved within the last 12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election."

(a) moved during the first four years of the life of Parliament shall not be allowed unless it nominates the next Prime Minister; and

(b) moved within 12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election shall not be allowed if it nominates the next Prime Minister."

There can be no doubt, then, that the five-year life of Parliament and the five-year term of office of each elected member ordinarily commences concurrently from the "day after the day fixed for the return of the writ for the election in his electorate" per s 104(1), and expires on the fifth anniversary of the day fixed for the return of the writs - per ss 104(2)(b) and 105(1)(a).

The five-year period is, thus, fixed and certain, from the day after the day fixed for the return of the writs to the fifth anniversary of that date. It is equally divisible into five periods of 12 months. Where such certainty has been established, it would be unreasonable that s 124 of the Constitution should permit an interpretation that provides for three mandatory meetings of Parliament in a time-span not readily determined or fixed by reference to the life of Parliament itself. There is simply no reason why s 124 should stand on its own, inconsistent with all those other sections, which are themselves consistent with each other. With certainty provided within the Constitution itself, there would seem to be no need to look elsewhere for interpretation. We do not consider that there is any gap in the Constitution.

The alternative propositions in questions 1(c) and 1(d) have no merit at all. The proposition in 1(b) that the period of 12 months commences from the date of the first meeting of the Parliament following a general election would only lead to inconsistencies and would render inoperable several interrelated provisions. Firstly, the date when it commences is variable and dependent on when Parliament is actually called to meet within the 21 days. Secondly, the life of Parliament thereafter to "the fifth anniversary of the date fixed for the return of the writs at the previous general election" cannot be equally divisible into "periods of 12 months" under s 124(1). Thirdly, the periods of 12 months from the first meeting of Parliament will not be consistent with the "first four years of the life of Parliament" and "12 months before the fifth anniversary of the date fixed for the return of the writs at the previous general election" requirement under s 145(2)(a) and (b) relating to the motions of no confidence.

It, thus, becomes clear that logically, by grammatical implication, and for consistency, the phrase "each period of 12 months" in s 124(1) relates to the divisible periods of 12 months for the whole period of the five-year life of Parliament. The first period of 12 months commences from the "day after the day fixed for the return of the writs," and each other period of 12 months is determinable therefrom.

The answer to this question quite simply is that under s 124 there is no duty specifically placed on a person, an office, or an institution to comply with its requirements. But pursuant to subsection (2) of this section, the Organic Law on the Calling of Meetings of the Parliament was enacted. Its first section has been quoted above. Its other two sections are as follows:

(1) In relation to any meeting of the Parliament, other than the first meeting after a general election, the time and date for the meeting:

N5>(ii) where the Parliament has failed to fix a time and date, be fixed by the Head of State, acting with and in accordance with, the advice of the National Executive Council; and

N5>(iii) where a state of emergency has been declared or the Head of State, acting with, and in accordance with the advice of the National Executive Council, is of the opinion that exceptional circumstances justify the urgent calling of a meeting of the Parliament, be fixed by the Head of State, acting with and in accordance with the advice of the National Executive Council; or

N5>(iv) where the Speaker has received a request from the Emergency Committee under Section 242(3) (functions, etc., of Emergency Committees) of the Constitution, be fixed by the Speaker after consultation with the Emergency Committee; and

(2) The Speaker shall, not less than 14 days before the date fixed under Subsection (1)(a)(i) or (ii) or not less than seven days before the date fixed under Subsection (1)(a)(iii) or (iv) for a meeting of the Parliament, cause a notice to be forwarded by telegram and pre-paid post to each member of the Parliament.

(1) Notwithstanding that the time and date of a meeting of the Parliament have been previously fixed, the time and date for an earlier meeting may be fixed in the circumstances in which not less than seven days notice of the meeting is required under Sections 1 and 2.

(2) Action may not be taken under Subsection (1) less than 14 days before the date already fixed for the meeting.

(3) The meeting of the Parliament, the time and date of which are fixed under Subsection (1), shall be in substitution for the meeting, the time and date of which had been previously fixed."

In the context of this reference, we are not concerned with calling of the first meeting of Parliament after a general election. Nor are we concerned with the calling of Parliament during a state of emergency. So the provisions of the Organic Law of relevance here are sub ss 2(1)(a)(i) and (ii). These may be summarised as follows:

N2>1. The times and dates of meetings other than the first one after a general election must be fixed by Parliament on a motion without notice, moved by a Minister.

N2>2. If Parliament fails to fix the time and date for the next meeting, it is the responsibility of the National Executive Council to advise the Head of State to fix the time and date.

Thus, while s 124 does not specifically delegate the responsibility for conducting the mandatory meetings, the only parties able to ensure that Parliament does meet three times in each year comprise the Head of State, the National Executive Council, the Speaker, and Parliament itself. Depending on the circumstance of the case, they are the parties upon whom the obligation falls to ensure that Parliament is called for those mandatory meetings.

But although specific institutions are designated by the Organic Law to call meetings of the Parliament, we must emphasize that there is also a general responsibility imposed upon each Member of the Parliament by s 124 to ensure that Parliament complies with its provision: "Parliament ... shall meet not less frequently than three times in each period of 12 months ...". Each Member of the Parliament, on assuming office, made a Declaration of Loyalty. That reads as follows:

"I ..., realizing fully the responsibilities to which I am committing myself and the consequences of not living up to this Declaration and those responsibilities, freely and willingly declare any loyalty to the Independent State of Papua New Guinea and its people and to the Constitution of Papua New Guinea adopted by the Constituent Assembly on 15 August 1975, as altered from time to time in accordance with its provisions, and promise that I will uphold the Constitution and the laws of Papua New Guinea."

This declaration is self-explanatory and requires no elaboration. The responsibility each Member of the Parliament undertakes is beyond doubt.

As is shown in s 2 of the Organic Law on the Calling of Meetings of the Parliament, referred to in answer to the previous question, meetings of Parliament other than the first meeting shall be fixed in accordance with that section and notified in the National Gazette. Therefore, the time so fixed establishes the parliamentary year within which the meeting commences, even if that meeting were to continue into a new parliamentary year.

There would, therefore, be only one meeting, a meeting in the parliamentary year in which it commences.

KAPI DCJ: The National Parliament held its 15th meeting on 6 and 7 November 1990. On 7 November 1990, the Parliament, by a motion, adjourned its sittings and fixed 16 July 1991 as the date of its next meeting.

The Leader of the Opposition, the Right Honourable Paias Wingti, and the Deputy Leader of the Opposition, the Right Honourable Sir Julius Chan, were not satisfied by this move and took out an originating summons, filed in the National Court, seeking the following declarations:

N2>1. A declaration that the Executive Government and the National Parliament (legislature) breached the constitutional requirements as to the calling of meetings of Parliament three times in each period of 12 months, and, in principle, for not less than nine weeks in each such period, under s 124 of the National Constitution, when the government used its numerical strength at the November meeting to adjourn to 16 July 1991.

N2>2. A declaration that the adjournment by Parliament to 16 July 1991 was therefore, unconstitutional, requiring judicial action to remedy the breach by enforcing the requirements of the Constitution s 124.

The plaintiffs also claimed the following orders under ss 22 and 23 of the Constitution:

N2>3(a) An order to direct the Prime Minister and/or the National Executive Council to advise the Head of State to fix the times and dates for two consecutive meetings of Parliament before 16 July 1991 to fulfil the requirements of the Constitution of having three meetings in each period of 12 months. Further, to order that the nine-weeks minimum sitting days be complied with and shall be apportioned between the two meetings. Or, alternatively,

N2>(b) an order to direct the Speaker of Parliament to fix the times and dates for two consecutive meetings of Parliament before 16 July 1991, to meet the requirements of the Constitution of having three meetings in each period of 12 months. Further, to order that the nine-weeks minimum sitting days be complied with and be apportioned between the two meetings. Or, alternatively,

N2>(c) an order that the Court must advise the Head of State to fix the times and dates for two consecutive meetings of Parliament before 16 July 1991, to meet the requirements of the Constitution of having three meetings in each period of 12 months. Further, to order that the nine-weeks minimum sittings days be complied with and be apportioned between the two meetings. (This is in view of the fact that both the conduct and action of the Executive and Legislature are in question as being the defaulters.) And also,

N2>4. That under both ss 22 and 23 of the Constitution, the court must impose a sentence of imprisonment of up to ten years or a fine of K10,000, or both, on the Honourable Acting Speaker, Mr Christopher Sombri MP, for allowing and thereby causing the breach of the Constitution and for failing in his duty to advise Parliament on the constitutionality of the action of the government when the motion was put to adjourn Parliament to 16 July 1991.

On 28 November 1990, the National Court sat to consider a motion by the first and second defendants seeking, among other things, to strike out the whole of the originating summons. At the hearing of this motion, counsel appearing for the first and second defendants sought an adjournment for seven days in order to file a special reference under s 19 of the Constitution. This course was objected to by the counsel for the plaintiffs. The court consequently ordered that the motion to strike out the proceedings be refused, that para 4 of the originating summons be struck out, the originating summons be amended by striking out the first defendant and the fifth defendant, and adjourned the hearing of the originating summons pending the special reference filed by the Principal Legal Adviser.

The special reference by the Principal Legal Adviser was filed on 28 November 1990. The special reference was set down for hearing on 19 December 1990. At the hearing, counsel for the plaintiffs sought to amend the reference to include questions relating to the remedies which may be imposed if there is a breach of the Constitution. Counsel for the Principal Legal Adviser objected to this amendment. Under the Supreme Court Rules, O 4 r 9, a reference under ss 18 or 19 may only be amended by the inferor. It was suggested by this Court that, if the National Court could make a reference under s 18 of the Constitution, such a reference could include questions relating to remedies for breach of constitutional provisions. If such a reference was made, it could raise the same issues that are already raised by the special reference but may also include questions relating to remedies. As the two references are related, the Court could hear both references together in the one hearing. Counsel for the plaintiffs, seeing his difficulty, and obviously conceding to the suggestion by the Court, sought an adjournment in order to go before the National Court to persuade it to make a s 18 reference, as suggested by this Court. The Court adjourned the further hearing of the special reference to 2 pm to enable parties to go before the National Court.

When the court resumed at 2 pm, it was advised that the National Court had made a s 18 reference. By agreement of the parties, the Court proceeded to hear both references together.

The section which calls for interpretation in this question is s 124 of the Constitution.

This section makes reference to meetings of the Parliament "not less frequently than three times in each period of 12 months and, in principle, for not less than nine weeks in each such period". The question has arisen as to when the period of 12 months begins and ends. Question 1 has set out four alternative interpretations as to when the period of 12 months begins and ends.

This question requires a close examination of s 124(1) of the Constitution. There are three parts to this section:

N2>1. "The Parliament shall be called to meet not more than 21 days after the day fixed for the return of the writs for a general election, ..."

N2>2. "and shall meet not less frequently than three times in each period of 12 months, ..."

Before I consider the interpretation of the three parts of this provision, I wish to state some general principles.

In this case, the Court has been called upon to interpret and give meaning to a provision of the Constitution. The primary task of the court in interpreting and giving meaning to the provisions of any statute is to discover, through accepted principles of interpretation, the real meaning that was intended by the legislature. Where the words are clear, then that is what the Parliament intended in those words. If the meaning is not clearly expressed, then the meaning intended by the Parliament can only be discovered by the use of words in the statute, and the statute must be read as a whole in an endeavour to find the real intention of the Parliament. Whether that intention is discovered by words clearly expressing the intention or by implication, that has to come from the provisions of the statute. If there are no words or provisions in the statute which can point to any number of possible interpretations, then the principles of interpretation can afford very little assistance. Where there is a gap in the law, the court can only fill that gap by consideration of the procedure set out under Sch 2.3 of the Constitution. I will return to this matter later on in my judgment.

"THE PARLIAMENT SHALL BE CALLED TO MEET NOT MORE THAN 21 DAYS AFTER THE DAY FIXED FOR THE RETURN OF THE WRITS FOR A GENERAL ELECTION, ..."

This part simply states that the Parliament shall meet no more than 21 days after the day fixed for the return of the writs for a general election. This has to be read together with s 1 of the Organic Law on the Calling of Meetings of the Parliament. There is no dispute about the meaning and the application of this part of the provision. For the present Parliament, it is agreed that the meeting under this provision was called on 5 August 1987. This part of the provision says no more than that. In this part, there is reference to the "day fixed for the return of the writs for a general election". The reference to this only serves one purpose in this part, and that is to assist in calculating the 21 days requirement for the first meeting of the Parliament. In my view, it serves no other purpose, and it is not in any way connected or related to the other two parts of the provision. The essence of this part is that the Parliament must meet within the 21 days from the day after the return of the writs for the general election.

"...AND SHALL MEET NOT LESS FREQUENTLY THAN THREE TIMES IN EACH PERIOD OF 12 MONTHS, ..."

This part of the provision deals with two matters. First, it deals with the frequency of the meetings. In this regard, it "shall meet not less frequently than three times". This is in mandatory terms.

Second, it deals with the period in which the Parliament is required to meet three times. This is clearly spelt out in the words "in each period of 12 months".

The provision failed to indicate when the period of 12 months begins and ends. The question then arises, because of the omission, whether there are other provisions or words in the Constitution which may indicate the intention of the Parliament as to when the period begins to run and ends.

I now consider the words of this part of the provision. The words "shall meet" relate to the three meetings of the Parliament which must be held within the period of 12 months. They do not indicate, either expressly or by implication, when the period of 12 months should begin and end.

The words "in each period of 12 months" do not give any indication as to when that period begins. The words "12 months" on their own do not assist. The reason is that it can begin from any point in time or any event. Conversely, the period of 12 months can be calculated from any of the alternative points set out in Question 1. The words of the provision are not at all helpful in determining the issue at hand.

The third part of s 124 of the Constitution simply uses the words "such period" and, again, fails to express when such period begins to run. The court can gain very little assistance from the words of s 124 of the Constitution.

Several provisions have been relied upon to indicate when the period of 12 months begins to run. Section 104 of the Constitution was relied upon. A close examination of this provision reveals that it deals with an entirely different matter altogether. Subsection (1) deals with when an elected member of the Parliament takes office. The reference to the words "the day fixed for the return of the writs for the election in his electorate" relates to when a member takes office. It has nothing to do with when the period of 12 months begins to run.

Subsection (2) deals with when a seat of a member of the Parliament becomes vacant. Subsection (2)(b) also makes reference to the return of the writs. Again, this relates to a vacancy in the Parliament and makes no reference to the issue of when the 12 months period begins to run.

Subsections (2)(d) and (3) appear to have some relationship to the 12-months period. It deals with three consecutive meetings of the Parliament. In my view, these words would relate to the three meetings within a 12-months period referred to in s 124 of the Constitution. However, it has no reference to any period at all. It is, therefore, possible to have these three consecutive meetings spread out over two periods of 12 months. However, that is only a tentative view, as we are not called upon to decide the meaning and application of s 104 of the Constitution.

Subsection (3) stipulates when the three consecutive meetings begin. As it does not relate to any period, it can have very little assistance to the issue of when the 12 months begins to run.

Section 105 of the Constitution was also relied upon. An examination of this provision reveals that it deals with when a general election should be held. In s 105(1)(a), reference is made to a period of three months which is calculated from the day fixed for the return of the writs for the previous general election. It has no relevance to the 12-months period. Subsection (1)(b) makes reference to a 12-months period. That is a reference to the last 12 months before the fifth anniversary of the day fixed for the return of the writs for the previous general election for purposes of a vote of confidence. This does not deal with the 12-months period in s 124 of the Constitution.

Section 145 of the Constitution deals with motions of no confidence in the Prime Minister and other Ministers. I fail to find anything in this provision which deals with the period of 12 months in s 124 of the Constitution.

All these provisions deal with different subject matter. They all make reference to the day the writ is returned for making calculations of various periods. They make no reference at all, either expressly or by implication, that the 12-months period in s 124 of the Constitution should begin to run from the day after the return of the writs for a general election. As the provision stands, the Parliament could provide for the period to begin to run from either the day after the return date of writs after a general election or to commence from the first sitting of the Parliament after a general election (s 124(3) of the Constitution).

I agree that the return of the writs after a general election is an important event around which all the other events make a reference point. That is the expressed intention of the Parliament. With regard to the 12-months period, the Parliament failed to express its intention. I have not reached this conclusion lightly. I have examined the constitutions of other Commonwealth countries for the purpose of examining the wording of their provisions with regard to the question of when the 12-months period begins to run and end. It is not necessary to set out these provisions, except to indicate that in each case, there is an express provision in relation to the issue. They all adopt a similar style of drafting. Such a style of drafting appears in s 41(3) of the Papua New Guinea Act 1947-73, which governed this issue until Independence in Papua New Guinea. Although the frequency of the meeting is different, reference to the 12-months period is as follows:

"... so that 12 months shall not intervene between the last sitting of the House in one session and its first meeting in the next session."

The effect of this provision is that the initial commencement of the 12-months period refers back to the date of the first meeting of Parliament after a general election. These or similar words have been left out of s 124 of the Constitution. I am not alone in this. The matter was raised in the National Parliament in 1989 by the member for Aitape-Lumi, to which the Speaker of the Parliament gave advice. I will return to the text of this advice later.

Section 124(3) empowers the Parliament, by an act or standing orders, to make provision in respect of the sittings of the Parliament. There is no such act, and the present Standing Orders make no provision relating to the issue of when the 12-months period begins to run.

There is nothing in the CPC Report or the debates in the Constituent Assembly which may give any assistance in the resolution of this issue.

I have reached the conclusion that, as a matter of interpretation, there is a gap in the law. In Papua New Guinea, we are not left without a remedy. Schedule 2.3 of the Constitution empowers this Court to formulate a rule of law to fill the gap. This Court has already done this in SCR No 4 of 1980; Re Petition of Somare (No 1) [1981] PNGLR 265. In formulating this rule, Kidu CJ said at 272 that the court may have regard, amongst other things:

N2>(d) to the legislation of, and to relevant decisions of the courts of, any country that in the opinion of the court has a legal system similar to that of Papua New Guinea."

Ordinarily, where there is a gap in a legislation, such as in this case, it would not be proper to fill the gap by way of judicial act. It would be more appropriate to enable the Parliament to fill the gap (Sch 2.4 of the Constitution). See State v Kor [1983] PNGLR 24. The Parliament could do this by amending s 124 of the Constitution, enacting an Act of Parliament, or including this in the Standing Orders (s 124(3) of the Constitution).

However, in this case, I would fill the gap for the following reasons. First, there is an urgent need to do something to determine the current period. If the Parliament does not like the formulation, they can always abolish the rule of law (underlying law) by legislation. Second, as I have pointed out earlier, the National Parliament considered the issue on 9 November 1989. The Speaker, recognizing the gap, advised the Parliament:

"The first question to address concerns in each period of 12 months. My advice is that this period should refer to the 15th July, the date of return of writs until 14th July in the next year. Members should note that whilst each is not specific, it does not refer to any period."

This advice was not challenged by any member of the present Parliament. Therefore, I have some indication as to what the Parliament would do.

As required under Sch 2.3(1)(c) of the Constitution, I may have regard to analogies from relevant legislation. I have already indicated that s 41(3) of the Papua New Guinea Act 1947-73 adopts the first meeting of the Parliament as the commencement of the 12-months period, and not the day after the return date of the writs.

Under Sch 2.3(1)(d), I may have regard to legislation and decisions of any country that has a legal system similar to Papua New Guinea. There are no relevant decisions, but there is legislation from the Commonwealth countries which are relevant. I have examined constitutions in Australia, the Caribbean countries, and African countries which can be said to have a similar legal system to PNG and, without having to refer to all of them, they adopt the first sitting of the Parliament as the commencement of the 12-months period. Only from this date can the Parliament fix any other meeting of the Parliament. There can be no meeting of the Parliament before the first meeting. See s 1 of the Organic Law on the Calling of Meetings of the Parliament. Therefore, it would be more appropriate to commence the period from the first meeting of the Parliament.

However, it has been pointed out that if the period of 12 months begins from the first sitting of the Parliament, the last period in the life of Parliament will fall short of 12 months. The same can be said of the first period if the 12 months begins from the day after the return of writs after a general election.

There is very little difference in effect between the day after the return of the writs and the first sitting of the Parliament after the general election. It is a difference of, at the most, 21 days. If I rule that the period begins from the day after the return of the writs, the Parliament only has 11 months 10 days to fit the three meetings in the first period of 12 months. If I rule that the period begins to run from the first meeting of the Parliament after the general election, the parliament will have only 11 months 10 days to have the three meetings in the last 12 months period.

As to the third alternative, that is, "any period of 12 months beginning with one meeting of the Parliament and ending with the third meeting of the Parliament", it is uncertain and may not be consistent with the term of Parliament.

As to fourth alternative, that is, "the period of 12 months commencing 1st January and ending 31st December in each", as the term of the present Parliament begins on 15 July 1987, it would not be possible to fit in all the 12 months period within the whole term of this Parliament.

Having regard to the fact that the majority adopts the day after the return of the writs as the commencement date, I would formulate the rule that the 12-months period referred to in s 124 of the Constitution should begin from the day after the return of the writs after a general election.

I have come to this conclusion not by way of interpretation but by way of judicial legislation permitted under Sch 2.3 of the Constitution.

This part of the provisions deals with the same such period, that is, the 12-months period which I have formulated as the period beginning to run from the day after the return of the writs after a general election. This part of the provision deals with the number of weeks the Parliament should sit in each such period. When the second and third parts of the provision are read together, the Parliament is required to sit no less than three times in 12 months and should sit for not less than nine weeks. It is clear from this part of the provision that it was the intention of Parliament that the Parliament should sit for no less than nine weeks in each period of 12 months. There is no problem if Parliament sits more than nine weeks in each such period. The issue arises as to whether there is any breach of this provision when the Parliament sits less than nine weeks. Where the Parliament sits for any period less than nine weeks, it is clear that that, of itself, does not result in the breach of the third part of this provision. (Sch 1.6(a) of the Constitution.) This is the effect of the words "in principle" that appear in this third part of the provision. The same arguments do not apply to the second part of the provision in relation to the frequency of three meetings.

Schedule 1.6 of the Constitution has been quoted in full in the majority opinion. Sch 1.6(b) is significant. It says, "If the act is reasonably capable of being understood or given effect to in such a way as not to be inconsistent with the proposition, it shall be so given effect to." What this effectively means is that the Parliament must aim to comply with the proposition in principle, and if it cannot achieve the proposition (nine weeks requirement), such less period of sitting must "not be inconsistent with" the nine weeks proposition.

The question as to whether a period less than nine weeks is consistent or inconsistent with the proposition of the nine weeks requirement is a decision taken at a political level. Under O 43 of the Standing Orders Ch 1, a motion for the adjournment of the Parliament may be moved only by a Minister. This determines the number of days the Parliament sits. As to how this motion is resolved is a matter of politics. Regardless of whether there is any effective remedy for breach of this proposition (the question of remedies has not been included in this reference), I would expect that all members of the Parliament should bear in mind that whatever period the Parliament sits, it should be "reasonably capable of being understood or given effect to in such a way as not to be inconsistent with the nine weeks requirement".

I am of the opinion that the meaning and application of Sch 1.6 can be fully understood within the context of an actual case, with facts which would show the number of days it was intended to sit in the 12-month period, the amount of business it completed, and the reasons for sitting for so many days. I do not think, with respect, that this Court can conclusively determine the meaning and application of Sch 1.6 of the Constitution on a hypothetical question under s 19 of the Constitution.

In the event that there is a breach (that is, the period sat by the Parliament is "inconsistent" with the nine-weeks requirement), whether there is any remedy is a question which I wish to leave open for future consideration, as it is not raised by this special reference. In particular, we have not been asked to consider the words "... it shall be so given effect to" in Sch 1.6(b) of the Constitution. These words may be relevant to the question of remedy.

The terms of s 124, in themselves, do not make clear as to who is responsible for calling the meetings of the Parliament. It simply says the Parliament shall be called to meet. In order to properly answer this question, one has to go to the Organic Law on the Calling of Meetings of the Parliament. This law is required to be made under s 124(2) of the Constitution. Under this law, the calling of meetings of the Parliament is given to various authorities.

Insofar as the first meeting of the Parliament after the return of the writs for general elections is concerned, the responsibility is placed in the Head of State. He exercises his discretion after consultation with the outgoing Prime Minister and Speaker. (Section 1 of the Organic Law on the Calling of Meetings of the Parliament.)

As to the other meetings, the time and date shall be fixed by the Parliament on motion without notice by a Minister; or, where the Parliament has failed to fix the time and date, it shall be fixed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council. (Section 2(1)(a)(i) and (ii) of the Organic Law on the Calling of Meetings of the Parliament.)

Where a state of emergency has been declared, the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may fix a time and date of meeting of the Parliament; or, where the Head of State, acting with, and in accordance with, the advice of the National Executive Council, is of the opinion that exceptional circumstances justify the urgent calling of a meeting of the Parliament. (Section 2(1)(a)(iii) of the Organic Law on the Calling of Meetings of the Parliament.)

Where the Speaker has received a request from the Emergency Committee under s 242(3) of the Constitution, he may fix a time and date of meeting of the Parliament after consultation with the Emergency Committee. (Section 2(1)(a)(iv) of the Organic Law on the Calling of Meetings of the Parliament.)

Within the context of this reference, the National Executive Council may advise the Head of State to call an urgent meeting of the Parliament if it considers that there are exceptional circumstances. (Section 2(1)(a)(iii) of the Organic Law on the Calling of Meetings of the Parliament.)

As to (b), such a meeting would be regarded as falling within the 12-months period in which the meeting was commenced.

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Supreme Court of Papua New Guinea

SCR No 4 of 1990; Reference by the Acting Principal Legal Adviser [1994] PGSC 17; [1994] PNGLR 141 (11 January 1991)

PNG Law Reports 1994