Papua New Guinea Law Reports - 1976
[1976] PNGLR 242
SC98
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
REFERENCE NO. 3 OF 1976
IN THE MATTER OF THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA
AND
IN THE MATTER OF A SPECIAL REFERENCE TO THE SUPREME COURT PURSUANT TO S. 19 OF THE CONSTITUTION
Waigani
Frost CJ Prentice DCJ Raine Saldanha Kearney JJ
18 June 1976
21 June 1976
CONSTITUTIONAL LAW - Independent State of Papua New Guinea - Whether general election permissible before electoral boundaries determined - Constitution of the Independent State of Papua New Guinea s. 105 (1) (c), s. 125[cclxxix]1, s. 269 (3), (4), (5).[cclxxx]2
If the Parliament by an absolute majority vote decides to hold a general election pursuant to s. 105(1)(c) of the Constitution of the Independent State of Papua New Guinea, a general election being the first general elections held after Independence Day may be held before the Parliament has determined the number of open and provincial electorates and their boundaries in accordance with s. 125 of the Constitution.
The intention of the Constituent Assembly as to the provisions of s. 269(5) of the Constitution which lay down the number of open and provincial electorates and their boundaries in the event that “the Parliament has not made a determination under s. 125(1) (of the number of open and provincial electorates and their boundaries in accordance with recommendations from the Boundaries Commission) in time for the first general elections held after Independence Day”, is that if a determination under s. 125(1) has not been made, whether by reason of no recommendation having been made by the Boundaries Commission or of such a recommendation having been rejected by Parliament, or for any other reason, and the occasion of the first post-Independence general elections has arisen, then in those circumstances the number and boundaries of the open electorates should remain the same as for the previous general elections (that is the previous general elections for the pre-Independence House of Assembly).
Reference
This was a special reference to the Supreme Court of Justice pursuant to s. 19 of the Constitution of the Independent State of Papua New Guinea which provides:
19.     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.
(2)      An opinion given under Subsection (1) has the same binding effect as any other decision of the Supreme Court.
(3)      The following authorities only are entitled to make application under Subsection (1):
(a)      the Parliament; and ...
(4)      Subject to any Act of the Parliament, the Rules of Court of the Supreme Court may make provision in respect of matters relating to the jurisdiction of the Supreme Court under this section, and in particular as to:
(a)      the form and contents of questions to be decided by the Court; and
(b)      the provision of counsel adequate to enable full argument before the Court of any question; and
(c)      cases and circumstances in which the Court may decline to give an opinion.
(5)      In this section, “proposed law” means a law that has been formally placed before the relevant law-making body.
The question referred by the Parliament was:
“If the Parliament by an absolute majority vote decides to hold a general election pursuant to s. 105 (1) (c) of the Constitution, does the Constitution allow such a general election to be held before the Parliament has determined the number of open and provincial electorates and their boundaries in accordance with s. 125 of the Constitution?”
Counsel
Pokwari Kale, for the Parliament.
J. Aoae, to argue the affirmative case. Section 125 of the Constitution provides for the determination by Parliament of the number of open and provincial electorates and their boundaries in accordance with recommendations from a Boundaries Commission. By s. 269 (3) such recommendations, in respect of open electorates, are to be made “as soon as possible after Independence Day”. It is submitted that Constitution s. 269 (3) has effect only as a directive to the Boundaries Commission to proceed with its recommendations in respect of open electorates with the greatest possible despatch. No target is set by the section. In fact it is submitted that the Constitution forsees the possibility of the Commission not having completed its work in respect of open electorates (and consequently Parliament not having made a determination in respect of open electorates — or for that matter in respect of provincial electorates) in time for the general election required by s. 269 (4) (b) of the Constitution, or one held earlier under s. 105 (1) (c) of the Constitution. The foresight emerges in the provisions of s. 269 (5) of the Constitution, which lay down the number of open and provincial electorates and their boundaries in the event that “the Parliament has not made a determination under s. 125 (1) (electorates) in time for the first general elections held after Independence Day”. Section 269 (5) of the Constitution takes effect notwithstanding anything in the preceding provisions of the Constitution (s. 264).
M. Kapi, to argue the negative case. The Boundaries Commission has failed to supply recommendations as soon as possible. Parliament has failed to demand such a recommendation. The Parliament is endeavouring to interpret s. 269 (5) of the Constitution in a manner which, if successful, would mean that by failing to observe a duty clearly laid upon it by the Constitution it has achieved an end as a result of its own failure to observe the Constitution. Such a method would not be contemplated by the framers of the Constitution.
Cur. adv. vult.
21 June 1976
FROST CJ PRENTICE DCJ RAINE SALDANHA KEARNEY JJ:  Under the Constitution of the Independent State of Papua New Guinea, s. 19, the Parliament has referred to the Supreme Court for its opinion, a question relating to the interpretation of certain provisions of the Constitution. The question is:
If the Parliament by an absolute majority vote decides to hold a general election pursuant to s. 105 (1)(c) of the Constitution, does the Constitution allow such a general election to be held before the Parliament has determined the number of open and provincial electorates and their boundaries in accordance with s. 125 of the Constitution?
The question arises from the fact that at present, that is during the life of the first Parliament, the Boundaries Commission has not yet recommended to the Parliament the number of open electorates and their boundaries for determination by the Parliament under s. 125 (1). As is assumed in the framing of the question, the term of the first Parliament under s. 269 (4) is subject to a general election being held under s. 105 (1) (c), if the Parliament, by an absolute majority, so decides. (See Reference No. 2 of 1976[cclxxxi]3).
The relevant constitutional provisions which are contained in Part XIII — Immediate and Transitional Provisions, s. 269, relating to the First Parliament, Electorates etc., are that notwithstanding anything in the Constitution, but subject to sub-s. (6) which refers to provincial electorates, the open and regional electorates for the pre-Independence House of Assembly are the first open and provincial (as the case may be) electorates for the Parliament (sub-s. (1)); the Boundaries Commission shall recommend to the Parliament the number of open electorates and their boundaries for determination by the Parliament under s. 125 (1) as soon as possible after Independence Day (sub-s. (3)); and if the Parliament has not made a determination under s. 125 (1) in time for the first general elections held after Independence Day, the number and boundaries of the open electorates shall remain the same as for the previous general elections (sub-s. (5) (a)). Subsection 5 (b) then goes on to provide that the number of provincial electorates shall be as determined by an Organic Law, and also for the determination of the boundaries of the provincial electorates (sub-s. (5) (c)). The number of the electorates is found by reference to the Organic Law on National Elections, s. 33 (1), which provides for one provincial electorate for each province, a term which includes the National Capital District (ibid. s. 2).
By the terms of s. 269 (5) the determination referred to in the question is to be made under s. 125 (1).[cclxxxii]4
Before turning to the arguments submitted by counsel it is to be noted that a redistribution on a National scale must necessarily be rather a lengthy process. This is borne out by the procedure laid down in the Organic Law on National Elections, Pt. III, which implements s. 125 (Electorates) of the Constitution by providing for a Boundaries Commission, and the defining of the Boundaries of National Electorates. The Commission is first to determine a population quota by reference to a prescribed formula (s. 35). Before making its Report a map with a description of the boundaries of the proposed electorates is to be exhibited, and also to be advertised in the National Gazette (s. 36). There is provision for objections and suggestions to be lodged with the Commission not later than two months after the first advertisement, and for their consideration by the Commission before making its Report (s. 37). The Report of the proposals is to be made to the Minister as soon as practicable after the expiration of the two months’ period (s. 38). The Report is then to be presented by the Minister to Parliament (s. 39). Once the proposals are placed before Parliament their is evident room for further delays because Parliament may accept or reject the proposals under s. 40, as is also provided by the Constitution, s. 125 (3), and if they are rejected the Commission may decide to make new recommendations or confirm the previous recommendations which, in turn, are also to be presented to the Parliament (s. 40 (7)) for acceptance or rejection.
The Principal Legal Adviser submitted that s. 269 (3) had effect only as a directive to the Boundaries Commission to proceed with its recommendations in respect of open electorates with the greatest possible despatch, and he then went on to argue that under the Constitution, the possibility was foreseen of the Commission not having completed its recommendations in respect of open electorates, and consequently of Parliament not having made a determination in respect of open electorates, or for that matter provincial electorates, in time for the general election required under either s. 269 (4) (b) or one held earlier under s. 105 (1) (c). This foresight emerges, as he then submitted, in s. 269 (5) (a), which provides that the number and boundaries of open electorates shall remain as in the previous general elections in the event that the Parliament has not made a determination under s. 125 (1) in time for the first general elections held after Independence Day.
Counsel who argued the negative case based his submission on the effect of s. 269 (3), which he argued placed a duty on the Boundaries Commission, which was enforceable under s. 23 of the Constitution, to make a recommendation as soon as possible after Independence Day. The use of the words “as soon as possible”, he submitted, indicated an intention that it should be made before the first general elections held after Independence Day. There was an obverse obligation, as he put it, on the Parliament to require the recommendation to be made. Counsel seemed also to argue that the Parliament should take this duty into account before reaching a voluntary decision to call a general election under s. 105 (1) (c). He also argued that Parliament cannot avoid its duty under s. 125 to make a determination by neglecting to call for recommendations from the Boundaries Commission. He then submitted that s. 269 (5) applies only where a recommendation has been placed before Parliament but Parliament has failed to make a determination.
Counsel summarized his argument, in effect, in these terms. The Boundaries Commission has failed to supply recommendations as soon as possible. Parliament has failed to demand such recommendations. An affirmative answer to the question would mean that Parliament had achieved an end as a result of its own failure to observe the Constitution.
We would wish to deal now with the wide-ranging submissions as summarized for the negative case. They seem to depend on the tenuous basis that from the mere lapse of time since Independence Day 1975 the Court should infer, presumably as a finding of fact, that the Boundaries Commission is in breach of a duty under s. 269 (3) to make a recommendation “as soon as possible”. Clearly these submissions raise matters which fall outside the question referred to the Court, and beyond its constitutional function to answer. In any event these submissions, in our opinion, cannot be sustained.
It is true that s. 269 (3) is framed in language which is apt to impose a duty. But it is irrelevant for the present question whether at the first general elections held after Independence Day — either an early election by absolute majority vote or an election at the end of the term of the First Parliament — the Boundaries Commission should be found to be in breach of that duty. An implication in any form that compliance with sub-s. (3) by the Boundaries Commission is a further condition for the holding of an election under sub-s. (4) is without foundation, and would indeed be contrary to the fair and liberal meaning of that subsection which it is to be given, Sch. 1.5. (2). Such a condition also would not, unless coupled with a condition requiring also a determination by Parliament, be effective to ensure an election on redistributed boundaries. For this Court to imply such a condition would be in effect to enact a provision which plainly goes beyond the intention of the Constituent Assembly. Equally, there is no foundation to imply as a further condition for the operation of sub-s. (4), compliance by Parliament with any constitutional duty to take action in relation to obtaining a recommendation by the Boundaries Commission. We are not to be taken as indicating that any such constitutional duty exists.
We are also not to be taken as indicating in any way that this Court considers that it would have been possible for the Commission to have made a recommendation merely because of the period which has elapsed since the Commission has been established.
Counsel who argued the negative case also referred to an extract from a document purporting to be a copy of the draft Hansard of the proceedings of the Constituent Assembly for 28th July 1975. It appears therefrom that the amendment to include a provision which is now largely s. 269 (3) was moved upon a statement, amongst other things, that “a determination under s. 125 (1) could be made in time for the 1976 general elections, assuming them to be held in May-June”. It is to be noted that it is a determination, not a recommendation, which is referred to, but in any event the statement falls far short of any indication of intention that an early election under s. 105 (1) (c) should be postponed until a determination or recommendation was made. To apply any such intention to the provision for a 1977 election in s. 269 (4) would be out of the question because of its complete inconsistency therewith. Further the document tendered does not appear to be in receivable form.
The other main argument for the negative case was that, as Parliament could not proceed to make the determination mentioned in s. 269 (5) unless the Boundaries Commission had first made a recommendation under s. 269 (3), there was a further condition to the operation of s. 269 (5) that such a recommendation should have been made. This argument fails for the same reason as does the submission we have already dealt with, that sub-s. (4) was subject to a similar condition. In our opinion there is no reason for reading down the general words of that subsection or so confining its operation.
The scheme of s. 269 in relation to the first general elections held after Independence Day is, we consider, quite clear. The provision in sub-s. (3) that the Boundaries Commission shall make its recommendation as to electorates and boundaries as soon as possible after Independence Day does not, in our opinion, constitute any condition for the operation of sub-s. (5). We consider that the affirmative argument by the Principal Legal Adviser is correct, and that the Constituent Assembly gave consideration to the possibility of delay in effecting a redistribution under an Organic Law, and also of an early election being held under s. 105 (1) (c). Accordingly, the intention of the Constituent Assembly was that if a determination under s. 125 (1) had not been made, whether by reason of no recommendation having been made by the Boundaries Commission or of such a recommendation having been rejected by Parliament, or for any other reason, and the occasion for the first post-Independence general elections arose, then in those circumstances the number and boundaries of the open electorates should remain the same as for the previous general elections. (In this subsection that term obviously must refer to the previous general elections held for the pre-Independence House of Assembly). So far as the argument to the contrary is concerned any recommendation alone could not have achieved an election on redistributed boundaries, as a determination was required, and whether that was made was a matter entirely for Parliament.
There is one final matter. The question refers to a determination under s. 125, without reference to s. 269 (5). But the point of the question as argued of course involves a consideration of s. 269 (5), and the question might appropriately have been framed by reference to it. It is clear from the fact that the question has arisen during the term of the first Parliament, and from the reasons we have given, that the general election mentioned in the question is to be taken as referring to the first general elections held after Independence Day. The question so understood, in our opinion should be answered Yes.
The question referred by the Parliament for the opinion of the Supreme Court is answered as follows:
Question:      If the Parliament by an absolute majority vote decides to hold a general election pursuant to s. 105 (1) (c) of the Constitution, does the Constitution allow such a general election to be held before the Parliament has determined the number of open and provincial electorates and their boundaries in accordance with s. 125 of the Constitution?
Answer:        Yes.
Solicitor for the Parliament: Pokwari Kale.

[cclxxix]Section 125 of the Constitution provides:
125       Electorates.
(1)        The number of open electorates and of provincial electorates and their boundaries shall be determined by the Parliament in accordance with recommendations from a Boundaries Commission from time to time, at intervals determined by or under an Organic Law, being intervals of not more than 10 years. 
...
(3)        The Parliament may accept or reject, but may not amend, any recommendations of the Boundaries Commission under Subsection (1). 
(4)        The Boundaries Commission is not subject to direction or control by any person or authority. 
(5)        An Organic Law shall make further provision for and in respect of the appointment, constitution and procedures of the Boundaries Commission, and for safeguarding its independence, and in relation to the procedures for formulating and considering its recommendations. 
...
[cclxxx]Section 269 of the Constitution provides where relevant: 
“(3)       The Boundaries Commission shall recommend to the Parliament the number of open electorates and their boundaries for determination by the Parliament under s. 125(1) (electorates) as soon as possible after Independence Day. 
(4)        Unless a general election to the Parliament is held earlier under Section 105 (general elections) the term of the first Parliament is:
(a)        the balance of the term of the pre-Independence House of Assembly remaining unexpended immediately after Independence Day; and 
(b)        the period up to the first general election held after Independence Day and the first general elections shall be held, as directed by the Head of State, acting with, and in accordance with, the advice of the Electoral Commission, in the months May and June, 1977. 
(5)        If the Parliament has not made a determination under Section 125(1) (electorates) in time for the first general elections held after Independence Day:
(a)        the number and boundaries of the open electorates shall remain the same as for the previous general elections; and 
(b)        the number of provincial electorates shall be as determined by an Organic Law; and 
(c)        the boundaries of the provincial electorates shall be as determined by the Head of State, acting with, and in accordance with, the advice of the Boundaries Commission, but so that the boundaries of the provincial electorates:
(i)         enclose all the territory of open electorates within each province; and 
(ii)        so near as may be, coincide with the boundaries of the provinces as defined in the Organic Law on Provincial Boundaries and the boundaries of the National Capital District as defined in the Organic Law on the Boundaries of the National Capital District.”
[cclxxxi][1976] P.N.G.L.R. 228.
[cclxxxii]Infra p. 242 footnote.