Moresby Northeast Parliamentary Election Petition; Lowa v Damena [1977] PGLawRp 560; [1977] PNGLR 429 (4 November 1977)

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[1977] PNGLR 429 - Re Moresby Northeast Election Petition; Patterson Lowa v Goasa Damena

CONSTITUTIONAL LAW - Organic Law - Validity of - Provisional Organic Law - Content partly Organic, partly ordinary Act - Constitution s. 12, s. 126(7)[cdlxx]¹ and s. 135 - Organic Law on National Elections Pt. XVIII, Div. 1.

N1>APPEAL - Ruling by National Court during proceedings - Whether ruling “interlocutory judgment” - Whether appealable to Supreme Court - Supreme Court Act s. 14(3).

N1>PREROGATIVE WRITS - Prohibition - Prohibition by Supreme Court to National Court before decision - Prohibition premature.

N1>PARLIAMENT - Elections - Disputed election petition - Lack of residential qualifications - Whether petition can be founded under Div. 1 Pt. 1 of the Organic Law on National Elections - Discretion of Parliament to refer such questions - Procedures co-existent - Constitution s. 103 - Organic Law on National Elections s. 228, s. 206.

On the hearing of a disputed election petition under s. 206 of the Organic Law on National Elections by a losing candidate for relief on the ground that the elected member did not have the necessary residential qualifications as required by s. 193 of the Constitution, objection was taken to the jurisdiction of the National Court, to hear the petition unless the proceedings were by way of parliamentary reference under s. 228 of the Organic Law on National Elections. Frost C.J. having ruled that he had jurisdiction (In re Moresby North East Parliamentary Election (No. 1) [1977] P.N.G.L.R. 424), leave to appeal against the ruling was sought pursuant to s. 14(3)(b) of the Supreme Court Act, 1975, on the ground that it was an “interlocutory judgment”, and in addition a writ of prohibition was sought against the continuance of the hearing of the petition;

N1>(1) (Per Prentice Dep. C.J. and Pritchard J.) The ruling by the National Court was not an “interlocutory judgment” from which leave to appeal could be granted under s. 14(3) of the Supreme Court Act 1975; such an “interlocutory judgment” is one which gives a decision upon a particular motion or summons.

N1>(2) (Per Prentice Dep. C.J. and Pritchard J.) The application for prohibition was premature and ought not, as a matter of discretion, be granted.

N1>(3) Nevertheless, as a matter of convenience, justice and necessity the appeal should be determined.

N1>(4) The provisions of Div. 1 Pt. XVIII of the Organic Law on National Elections, providing for disputed election petitions to be heard and determined by the National Court are valid and effective.

The National Elections Law was “a provisional Organic Law” expressed to be such and took effect under s. 266(1) and (2) of the Constitution on Independence Day, and accordingly could under s. 126(7) of the Constitution make provision for and in respect of appeals to the National Court in electoral matters, and the petitioner was entitled to invoke the jurisdiction of the National Court.

N1>(5) The Organic Law on National Elections provides two alternative procedures for challenging the qualifications of candidates and members, one within a limited time under s. 206 of the Organic Law on National Elections, by petition of a defeated candidate, the other by reference at any time by Parliament pursuant to s. 228 of the Organic Law on National Elections, and there is no reason why the procedures should not exist side by side.

In re Moresby North East Parliamentary Election (No. 1) [1977] P.N.G.L.R. 424 upheld.

N1>(6) Accordingly, the application for an order nisi for writ of prohibition should be refused, the appeal dismissed and the National Court directed to continue to hear and determine the proceedings.

These were proceedings instituted by way of appeal against the ruling of the National Court as to jurisdiction on the hearing of a disputed election petition brought under s. 206 of the Organic Law on National Elections (see In re Moresby North East Election Petition (No. 1) [1977] P.N.G.L.R. 424) and a writ of prohibition against the continuance of the hearing of the petition.

K. N. Gregory, for the Acting Principal Legal Adviser to the National Executive, intervening.

PRENTICE DCJ: The respondent to an election petition has, by application to the Supreme Court, caused the hearing of the petition against his election to be stopped. The Chief Justice sitting as the National Court had given a ruling that the petitioner was entitled to rely in a petition under s. 112, National Elections Act, on a question of lack of qualification in the respondent. Following the cessation of the hearing, leave to appeal has been sought against this ruling on the basis that it was an “interlocutory judgment” (s. 14 Supreme Court Act). In addition a writ of prohibition against the continuance of the hearing of the petition has been sought.

For myself, in an ordinary case, I would be reluctant to rule that the Supreme Court should so interfere with a hearing before the National Court. I consider that as a general rule the Supreme Court should not interfere with a National Court hearing until it had reached a conclusion — unless, in an exceptional case, the National Court itself referred a case for decision before finality. That finality should normally be obtained in the National Court before appeal were sought therefrom, is called for, in my opinion, by the geography and circumstances of this country, and the organization of its superior courts. Mr. McAlary has presented an argument that s. 155(2) of the Constitution, which vests an inherent power in the Supreme Court to review all the judicial acts of the National Court, renders invalid s. 14 of the Supreme Court Act which requires leave to appeal from an interlocutory judgment. In my opinion the argument is unacceptable. Such a result would render every decision of the National Court (even, for example, on questions of reception of evidence) susceptible to appeal, and presumably before finality of decision. The potentially catastrophic effect upon the work of the National and Supreme Courts of such an interpretation is immediately apparent. In my view, s. 14 of the Supreme Court Act does not infringe upon the powers conferred by the Constitution, but merely regulates their exercise — indeed in an eminently reasonable particular. It does not appear to me that a ruling during the course of the hearing of a case (though sometimes for convenience called such) is an “interlocutory judgment” within the meaning of s. 14 of the Supreme Court Act. Such an “interlocutory judgment”, in my opinion, is one which gives a decision upon a particular motion or summons before the Court. The distinction between the two types of decision, an interlocutory judgment on the one hand and a ruling on the other, may be illustrated by the fact that a ruling might be vacated or altered during the course of a hearing. I am satisfied that an effective “review” of the National Court’s proceedings, within the meaning of s. 155 of the Constitution, can be obtained on appeal. In regard to the application for prohibition, it has been strenuously urged by Mr. Young, for the respondent, that the law applicable in the countries from which our judicial system in effect derives, that prerogative writs do not run to judges of superior courts, should be held suitable to and applicable in Papua New Guinea. That is that the prerogative writs should not issue from the Supreme to the National Court (itself a superior court of record — s. 163(2) of the Constitution). He points to the absurd consequence that such a writ issued under the hand of the Chief Justice, would in this instance, issue to the Chief Justice himself. He relies on the analogy of the decisions in Ex parte Groot; Re Myers and Others[cdlxxi]²; R. v. An Election Court; Ex parte Sheppard[cdlxxii]³; and see De Smith Judicial Review, 3rd ed., p. 340.

There is much force in Mr. Young’s argument; but it is, I think, unnecessary to decide the question in this case, for in any event the application for prohibition is, in my opinion, premature, and ought not as a matter of discretion be granted.

In the hearing before the National Court it appears to have been assumed by the counsel involved that s. 18 of the Constitution did not debar the National Court from interpreting Constitutional laws in an election petition, because the section itself expresses its provisions to be “subject to the Constitution”, and s. 135 of the Constitution vested the National Court with “jurisdiction to determine any question as to the qualifications of a person to be or to remain a member of the Parliament or the validity of an election to the Parliament” (emphasis mine); which would, it was apparently agreed, include any ancillary interpretation of a Constitutional Law. Nevertheless, it might well have transpired that during, or at the end of, the hearing, counsel might have sought that such an interpretation point be referred, or the Chief Justice might have wished to refer such a point — in compliance with the Supreme Court’s “inherent power to review all judicial acts of the National Court” (s. 155(2)(b) of the Constitution) — this despite s. 220 of the Organic Law on National Elections, which enacts that “a decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way”. An Organic Law must of course be read subject to the Constitution (s. 10(a) of the Constitution).

For the reason that such a reference might have been and could be made, and because the Chief Justice who is engaged in the National Court hearing, is known to be retiring in a few weeks, I would agree that this hearing should continue as a matter of convenience, justice and necessity, as an appeal.

Mr. Lowa, the applicant in this matter, was born in West New Britain. In the recent National elections he was elected the member for North East Port Moresby. In proposing himself a candidate for that electorate he was relying on a two years residential qualification (s. 103(2) of the Constitution). A petition was brought to the National Court in purported reliance on the Constitution and the Organic Law on National Elections (hereafter called “the Organic Law”) — in particular relying on various sections of Div. 1 of Pt. XVIII thereof — alleging lack of residential qualification in the member.

During the hearing in the National Court, before the Chief Justice, a preliminary point was taken that a petition might not be brought by a defeated candidate on such a ground, for that questions of disqualification could only be raised in the National Court on reference by a vote of Parliament. A ruling was made disallowing the objection. Thereupon the elected member, before the conclusion of the hearing in the National Court, moved to seek leave to appeal from his Honour’s ruling (on the basis that it was an interlocutory judgment). Subsequently, to this process has been added application for a writ of prohibition to run against the National Court’s continuance with the hearing. A single judge exercising the powers of the Supreme Court, under the recently enacted rules, obtained the acquiescence of the Chief Justice to a cessation of the National Court hearing pending appeal, and referred to the full bench of the Supreme Court the question of whether an order nisi by way of prohibition should issue. Mr. Gregory sought leave to intervene in this Court on behalf of the Principal Legal Adviser to the National Executive Counsel on the ground that the matter was one of National importance. Leave was granted.

Many important questions as to procedure (some of which I have dealt with above) have been argued. The principal submissions on the merits, on behalf of the elected member, are twofold. He submits firstly that the whole of the provisions of Div. 1, Pt. XVIII of the Act are invalid and ineffective, and that no provisions of law exist whereby petitions may be brought to the National Court by defeated candidates. The effect of this submission, if accepted, would be that such decisions on petitions as have already been heard could be struck down; and there would be no appeal available against improper conduct during elections — including bribery, corruption or undue influence; and those petitions still awaiting decision would be aborted. A further necessary consequence would seem to be that there would be no enacted law as to polling places, electoral rules, enrolment, objections to enrolments and appeals to the District Court.

The applicant submits secondly that even if procedure by petition is available to a defeated candidate — such a petition may not be grounded on matter of disqualification — such a question may only be brought before the National Court on a reference by vote of Parliament under s. 228 of the Organic Law (the submission made in the National Court).

The argument on the first of these submissions proceeds in this way. Section 126(7) of the Constitution requires an Organic Law to provide, inter alia, for “appeals to the National Court in electoral matters” (sub-s. (d)). This section is mandatory. (By the provisions of s. 1 of the Organic Law itself, Div. 1, Pt. XVIII of the Law, is expressed not to have the effect of an Organic Law). Provision for appeals in electoral matters therefore must be made by way of an Organic Law and not otherwise. Where the Constitution provides for a particular procedure to be followed in law-making, then any law purportedly passed in any other fashion is null and void. What the Constituent Assembly (which passed the Provisional Organic Law) tried to do was avail itself of the provisions of s. 12(3)(a) of the Constitution. This it may do and its resulting legislation would have the effect of a simple act of Parliament (s. 266(2) of the Constitution). But by virtue of s. 126(7) of the Constitution, it could not make such a “simple act” of Parliament in relation to appeals to the National Court in electoral matters. It is convenient to set out at this point, s. 1 of the Organic Law:

(1) Section 2, Parts IV, V, VII, VIII, IX, X (other than Sections 72, 73, 79 and 80) and XI (other than Sections 82, 83, 95 and 96) Section 99, Parts XIII (other than Sections 126, 130, 136, 138, 139 and 140), XIV (other than Sections 148, 152, 153, 169 and 171), XV and XVIII and Sections 246 and 247 are intended to take effect, as provided for by Section 12(3)(d) (Organic Laws) of the Constitution as an Act of the Parliament.

Mr. McAlary obtained support from Mr. Gregory on behalf of the Principal Legal Adviser on this first point, to the extent of an admission that as it stood, Div. 1, Pt. XVIII was not an Organic Law. As I understand his submission, he concedes that to be effective, any legislation such as is contained in this Division, requires to be in the form of an Organic Law (s. 126(7) of the Constitution). However, he contends, that the obvious intention of the Constituent Assembly that there should be safeguards against electoral abuse may be effectuated by the use of the “blue pencil rule” to strike out, from s. 1, the words and figures “and Part XVIII”. This may be done, he said, under s. 10 of the Constitution as it was interpreted in the case of The State v. The Independent Tribunal Established under Section 27(7) of the Organic Law on the Duties and Responsibilities of Leadership 1975; Ex parte Moses Sasakila[cdlxxiii]⁴ — in accordance with s. 15a Acts Interpretation Act of Australia. Such an erasure would constitute Div. 1 an “Organic Law” and effective, as its makers intended (and see the Constitution Schedule 1.5), he submitted. Mr. McAlary would suggest that this submission is somewhat bizarre in that it seeks to involve the Court in making a decision that would turn the Organic Laws provision as to Pt. XVIII into something the opposite of what it expressly purports to be. The Court is indebted to Mr. Gregory for his ability to produce such an ingenious suggestion at extremely short notice. But for reasons that will appear, I do not think it necessary to deal with it.

Mr. Young seeks to counter this argument by submitting that s. 126(7)(d) is merely directory and not mandatory. That in any cases, the whole law on National Elections is to be considered an Organic Law as it fulfils all the criteria of s. 12(1)(a), (b) and (c) of the Constitution. He further submits that inasmuch as s. 1 the Organic Law purports to affect the status of sections of the Act, the section itself could be considered invalid.

I must confess to some difficulty in grasping the notion that a provision, mandatory or directory, though it might be, in one Constitutional law may invalidate a provision made contemporaneously by the same Constitution-making body — the Constituent Assembly, when that second-named provision is effectuated by the first-named provision (the Constitution) itself. However, I do not think it necessary to decide whether the words of s. 126(7) of the Constitution:

are merely directory or mandatory. For I believe that therein the Constituent Assembly was looking to the future to an Organic Law to be made by the Parliament that was to be. The debates in the Constituent Assembly revealed that certain of the pre-Independence Parliamentarians were determined that Independence should not precede the passage of the Organic Laws foreshadowed by the Draft Constitution. Subsequently a prodigious effort on the part of the drafting counsel produced the series of Provisional Organic Laws which were enacted by the Assembly, and are to be read with the Constitution as “Constitutional Laws” (Schedule 1.2 and s. 266(1)). The achievement was considerable indeed; but the haste with which the work was necessarily done to meet an Independence date-line, is now being reflected in some of the litigation before the Court. The scheme adopted was that Provisional Organic Laws should be enacted by the Constituent Assembly, until Organic Laws covering the subjects should come to be passed by the future House of Parliament; that is until such an Organic Law is passed the Assembly provides us with a “Provisional Organic Law” which is to take effect as an “Organic Law” (s. 266 of the Constitution); and presumably is self-executing to the fullest extent that its nature and subject matter permit (s. 11(2) Constitution).

If it were necessary therefore to decide whether the provisions of s. 126 are mandatory or directory; I should think the preferable view would be that they were directory only. They should be seen as an instruction to the Parliament to come into operation at Independence, on which the Government of the day might well have difficulties in regard to commanding the necessary majorities to pass such an Organic Law, and might have difficulties with the order of business and passage of legislation generally. I find myself unable to believe that the intent of the Founding Fathers was that there must be an Organic Law to cover subject X, and that until such a law be passed there shall be no law at all on subject X. I do not consider the Constitutional Laws require such an interpretation.

The Organic Law under consideration was passed by the Constituent Assembly on 14th September, 1975, that is two days before Independence. It was expressed to be a “provisional Organic Law” in the form in which it was passed. The original copy signed by the officers of the Assembly has been sighted by the members of the Court. But as printed by the Government Printer the law now reads “an Organic Law”. There can be no doubt that the National Elections Law was a “provisional Organic Law” expressed to be such — and took effect under s. 266(1) and (2) of the Constitution on Independence Day.

I consider the implementation of this scheme which occurred, is sufficient to require the rejection of the submission as to the invalidity of Div. 1, Pt. XVIII, for the injunction in s. 126(7)(d) may be considered as operating as to future requirements and not on the Provisional Organic Law itself. However, an examination of the Provisional Law itself would, I think, produce a similar result. Section 3 of the Act, which is part of the Law said to take effect as an Organic Law (s. 1(2)), provides that:

Any question as to whether a person has been validly elected as a member of the Parliament or whether the seat of a member has become vacant shall be determined by the National Court.”

A study of the Act draws me to the conclusion that this section (in the setting of the rest of the Act) was designed so as to ensure compliance in any event with s. 126(7)(d) of the Constitution; and in my opinion it does so — it makes provision for “appeals to the National Court in electoral matters”, by specifying the nature of the questions which shall be determined. The provisions of Div. 1, Pt. XVIII may then be accepted as valid, even if they themselves are regarded as having the effect of “simple laws” of the Parliament under s. 266(2) of the Constitution, filling out the basic organic law enactment of s. 3.

For the above reasons I would reject the submissions as to the invalidity of Div. 1, Pt. XVIII. Were these provisions to be regarded as invalid, I would nevertheless construe the Constitution as requiring the National Court (s. 22), and presumably (on review) this Court, to provide the necessary machinery and procedures to ensure that a citizen may stand for Parliament, and not have his right to be elected defeated by a candidate lacking the necessary Constitutional qualifications, or by one who had indulged in illegal or grossly unfair practices — if no such protection had been provided by legislation. If I felt constrained to find or provide such machinery to allow the s. 135 (the Constitution) jurisdiction to be exercised, and the National Goals to be approached (s. 22 of the Constitution), I would be prepared to determine the provisions of Div. 1, Pt. XVIII as being appropriate machinery to so safeguard and enforce the said rights.

The alternative argument on the merits was that put before the National Court — that a petition does not lie on the ground of lack of qualification. This submission was spelt out of a consideration of s. 231 of the Organic Law which is in these terms:

On the hearing of a reference under this Division, the National Court shall sit as an open Court and has the powers conferred by Section 212 so far as they are applicable, and in addition, has power:

(b) to declare that a person was not capable of being chosen or of sitting as a member; and

If there already existed power under s. 212 to deal with “qualification” points, then it is said the phrase “and in addition has power . . .” was inapt and otiose. This consideration indicates the Organic Law intended that “qualification” points could be raised only on reference by the Parliament, it is said.

It has been suggested that the result sought by the applicant — namely a finding that the qualification of a successful candidate cannot be challenged in a petition by a beaten candidate — should not be regarded with dismay; in that the Parliament may itself refer such a question to the National Court. It must be assumed (it is urged) that the Parliament would act responsibly and in accordance with conventions established in other legislatures with comparable legislation. The result that no member of the (majority) Government could possibly be challenged on the ground of qualifications, is not to be thought of as a possibility — it is inferred. One would hope the Parliament would follow the conventions observed apparently in other democratic legislatures, whereby once such a point was raised it would be referred by the House to the Court by a vote not on party lines. However, one may be forgiven for expressing anxiety as to whether reliance can be placed on such conventions being followed, when one considers that in this appeal the applicant through his counsel is contending (in effect) that no court in the land has jurisdiction to declare null and void an election won even by bribery, corruption or the most improper influences — that all that may be challenged is the qualification of a candidate and that only after a reference to the Court by a majority of the Parliament.

Mr. Young, in seeking to uphold the decision of the National Court in its ruling on this point, emphasizes that whereas s. 231 of the Organic Law deals with members, s. 212 deals with candidates; s. 231 was needed, he says, for more abundant caution. He has traced the history of both Div. 1 and 2 of our Act to their origins in the Commonwealth of Australia Electoral Acts of 1902 and 1907 respectively. He points out that the Australian equivalent (ss. 206aa-206f) of our Div. 2, of Pt. XVIII, appears to have been enacted to deal with a case of a “member” who had not been a candidate, viz. a member who had been nominated by the South Australian Government to fill a casual Senate vacancy; see Joseph Vardon v. James Vincent O’Loghlin[cdlxxiv]⁵. The Constitution of Papua New Guinea also contains provisions allowing for nominees as members of Parliament. This would allow room for the operation of s. 231 on qualification points “in addition” to powers that might have been given in regard to such points under s. 212. There appears to have been no case since 1907 in Australia which discloses use of the petition procedure in relation to a member’s qualifications despite the present existence of the procedure by reference from the Parliament. But there have been a number of cases in which the qualification of candidates had been raised under election petitions. These include: In re Crawford’s Election; Ex parte Heaven[cdlxxv]⁶; R. v. An Election Court; Ex parte Sheppard[cdlxxvi]⁷; Re Bristol South East Parliamentary Election[cdlxxvii]⁸. The position in the United Kingdom is set out in Halsbury’s Laws of England, 4th ed., Vol. 15, at paras. 568, 822.

Though procedures in the United Kingdom are available by way of vote of the Commons on qualifications for membership — it has also been held that such points may be raised and decided on petition (Halsbury’s Laws of England, 3rd ed., Vol. 28, pp. 342-343), under the comparable legislation. One reason expressed for this, is that a returning officer cannot reject nominations on such grounds. I agree with the opinion of the Chief Justice in the National Court that the Organic Law provides two alternative procedures for challenging the qualifications of candidates and members; one within a limited time, by petition of a defeated candidate — the other by reference at any time by the Parliament. With respect, I also can see no reason why these two procedures should not exist side by side.

In my opinion the ruling of the National Court is correct in its interpretation of ss. 212 and 231 of the Organic Law. I would, for these reasons expressed above, dismiss the application for an order nisi for writ of prohibition; and dismiss the appeal and would wish this Court to direct that the proceeding in the National Court continue.

WILLIAMS J: The issues which arise in this proceeding and the arguments advanced on behalf of the parties are fully set out in the judgment of the Deputy Chief Justice and there is no need for me to repeat them.

Several objections of a procedural nature were raised on behalf of the respondent which question the jurisdiction of this Court to entertain these proceedings either as an appeal or as an application for a writ of prohibition.

There may be some substance in these objections. However, in the particular circumstances of this case I consider that this Court should deal with the questions raised on their merits. Section 155(2) of the Constitution confers on this Court an inherent power of review of all judicial acts of the National Court. It is known that the judge of first instance retires in the very near future. It will be necessary for him to entertain this matter further following the decision of this Court. It is also highly desirable that there should be expeditious conclusion of the issues raised having regard to the present status of the appellant and the question of costs to the parties.

The first contention raised on behalf of the appellant is that the petitioner had no status before the Court of first instance. Section 206 of an instrument which describes itself as being “A Provisional Organic Law” provides that the validity of an election or return may be disputed by petition addressed to the National Court and not otherwise. Section 208(c) provides that a petition should be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election. Both s. 206 and s. 208(c) fall within Pt. XVIII of the instrument.

Section 1(1) of the instrument provides that certain enumerated sections and parts (including Pt. XVIII) “are intended to take effect as provided by s. 12(3)(a) of the Constitution as an Act of the Parliament.” Subsection (2) provides that the balance takes effect as an Organic Law. Section 126(7) of the Constitution provides so far as is relevant for present purposes that an Organic Law shall make provision for and in respect of appeals to the National Court in Electoral matters.

Under s. 12(1) of the Constitution an Organic Law is a law made by the Parliament that is:

N2>(a) for or in respect of a matter provision for which by way of an Organic Law is expressly authorised by the Constitution, and

The argument for the appellant proceeds that by reason of s. 126(7) of the Constitution only an Organic Law can make provision for and in respect of appeals to the National Court in Electoral matters and that because of the statement contained in s. 1(1) of the instrument made by the Constituent Assembly that Pt. XVIII is intended to take effect as an Act of the Parliament, Pt. XVIII is not an Organic Law which complies with the requirements of s. 126(7) of the Constitution which, it is said, is a mandatory provision. In consequence the respondent could derive no assistance from the provisions of Pt. XVIII to confer on him the status of a petitioner. Whilst the National Court had jurisdiction to determine any question as to the qualifications of a person to be or to remain a member of the Parliament (s. 135 of the Constitution) the respondent had no standing to invoke that jurisdiction.

The concept underlying an Organic Law as distinct from an ordinary Act of Parliament is that a proposed law to alter an Organic Law must, in accordance with s. 14 of the Constitution, be supported on a division by a prescribed majority of votes expressed on at least two occasions after opportunity for debate on the merits whereas the amendment of an ordinary Act requires merely a majority of votes of the members present voting (s. 144 of the Constitution).

To my mind the question reduces itself to one of ascertaining the intention of the framers of the Constitution in enacting s. 126(7). That section is very general in its terms stating that an Organic Law shall make provision “for and in respect of” the several matters referred to in the section. The framers of the Constitution contemplated, in adopting s. 12(3), that an Organic Law may contain provisions that would be subject to the stringent provisions of s. 14 of the Constitution relating to amendment and also provisions which would not.

Section 126(7) which makes provision with respect to a member relating to elections including appeals to the National Court in electoral matters itself contains no indication as to where the line should be drawn, that is to say which matters should be subject to the provisions of s. 14 and which should not.

It seems to me that this is the reverse of the usual kind of case where Constitutional provisions are made and subsequently an Act is passed which is called into question as being outside the authority of the Constitution. In this case, however, the Constituent Assembly made the instrument and adopted the Constitution itself on the same day. Included in the Constitution was s. 266 the clear purpose of which was, to, my mind, to adopt and give the force of law to Provisional Organic Laws and Provisional Acts made by the Constituent Assembly prior to Independence Day.

The instrument in question in this case was one which, on its face, was expressed to be a Provisional Organic Law for the purpose of implementing ss. 125 and 126 of the Constitution and thus is of the kind of instrument referred to in s. 266(1). I think that it must be attributed to the framers of the Constitution (the same body as that which produced the instrument) that they were aware of the form and content of it and that, by adopting s. 266 of the Constitution, gave to it force and effect on Independence Day as an Organic Law for the purposes of s. 126(7) of the Constitution. In so doing I think that they gave a clear indication that it fulfilled their intention underlying the making of ss. 126(7) and 12 of the Constitution. In other words, I am unable to see how it can be said that an instrument is outside the authority conferred by the Constitution when the Constitution itself makes provision to give the instrument force and effect. I would, accordingly, hold that the petitioner was entitled to invoke the jurisdiction of the National Court.

An alternative argument raised by the appellant is that assuming that Pt. XVIII does not fall then the respondent had no standing as a petitioner for the reason that as the subject matter of his complaint was the lack of qualification of the successful candidate to be a member of the Parliament. It was contended that an issue relating to the qualifications of a member may only be dealt with by the National Court upon the reference of the question by Parliament (s. 228). This argument was put to the judge of the first instance and rejected by him. Counsel for the respondent outlined the history of Pt. XVIII which substantially follows Australian legislation on the same topic which I think is of assistance in interpretation. On this aspect of the matter I am in agreement with the reasons of the Deputy Chief Justice for holding that the judge of the first instance was correct in rejecting the contention advanced by the respondent to the petition.

I would refuse the application for an order nisi for a writ of prohibition and would dismiss the appeal.

PRITCHARD J: These proceedings arise out of the hearing in the National Court of a petition by the respondent Mr. Damena disputing the validity of the election of the appellant Mr. Lowa to the seat of Moresby North East in the recent general elections. The petition was addressed to the National Court under s. 206 of the Organic Law on National Elections and was based on the ground that Mr. Lowa was not qualified to stand for election in that electorate because he lacked the residential qualifications required by s. 103(2) of the Constitution. Section 103(2) reads as follows:

“A candidate for election to the parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time.”

The petition was heard in the National Court by the Chief Justice and at the hearing a preliminary objection was taken on behalf of Mr. Lowa that Mr. Damena could not rely on the ground of lack of residential qualifications to found a petition under s. 206, which is the first section in Div. 1 of Pt. XVIII of the Organic Law. The argument proceeded on the basis that Div. 2 of Pt. XVIII headed “Qualifications and Vacancies” and specifically s. 228 in that Part, provided for Parliament having a discretion to refer a question respecting the qualifications of a member to the National Court. The argument proceeded that as that discretion was specifically vested in the Parliament, lack of qualifications was not available as a ground to found a petition disputing the validity of an election by an unsuccessful candidate.

On 29th September the Chief Justice ruled on the preliminary objection and held that he did have jurisdiction to hear the petition as lack of qualifications could be relied on as a ground to found a petition under s. 206 of Div. 1. The Chief Justice heard the evidence on the petition and reserved his decision. On 10th October, before the decision had been given, Mr. Lowa filed an application for leave to appeal from what was called the “Interlocutory Judgment” of the Chief Justice of the 29th September, under s. 14(3) of the Supreme Court Act 1975. The grounds upon which the application was based were:

(i) That the National Court of Justice had jurisdiction to hear and determine the petition of the petitioner Goasa Damena.

(ii) That Div. 1 of the Pt. XVIII of the Organic Law on National Elections provides an alternative to the procedure of Parliamentary reference in Div. 2 of Pt. XVIII of the Organic Law on National Elections.”

On the same day Mr. Lowa lodged a notice of motion for a writ of prohibition seeking to stay the National Court from proceeding further with the election petition. The Chief Justice the next day agreed not to deliver judgment on the petition pending the outcome of the appeal in this matter, and the judge before whom the notice of motion first came, stood that matter over to be heard simultaneously with the appeal.

These then are the matters before this Court. Several preliminary matters were argued. I have had the advantage of reading in draft the judgment of the Deputy Chief Justice and I agree with his decisions that the ruling of the Chief Justice on 29th September was not an interlocutory judgment from which leave to appeal could be granted under s. 14(3) of the Supreme Court Act and also that the application for prohibition was premature and ought not be granted. He has set out his reasons for these decisions in his judgment and I will not repeat them. I agree also with the reasons he advanced for this Court’s continuing to hear this matter. Although as he says, s. 220 of the Organic Law enacts that “a decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way” that provision must be read subject to the inherent power of this Court to review all judicial acts of the National Court entrenched in s. 155(2)(b) of the Constitution.

Further, although s. 135 of the Constitution provides that the National Court has jurisdiction to determine any questions as to (a) the qualifications of a person to be or to remain a member of the Parliament or (b) the validity of an election to the Parliament and this provision is re-enacted in somewhat different wording in s. 3 of the Organic Law, this too must be read bearing in mind the provisions of s. 18 of the Constitution which specifically says 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. Subsection (2) of that section provides that, subject to the Constitution, where any question 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.

The combined effect of s. 18 and s. 155(2)(b) make it desirable that this Court should consider the problems of Constitutional interpretation or application which arose in the National Court and I agree with the Deputy Chief Justice in his decision in this regard as well.

The case for the appellant rests on two bases, firstly that the provisions of Div. 1 of Pt. XVIII of the Organic Law is invalid because it contravenes the provisions of s. 126(7) of the Constitution and secondly, if it is not, that a petition disputing the validity of an election cannot be grounded on lack of qualifications, which of course, was the point taken in the National Court.

To appreciate the first argument I will set out the provisions of the Constitution and the Organic Law immediately relevant.

(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

(2) An Organic Law may be altered only by another Organic Law, or by an alteration to this Constitution.

(b) requiring any provision to be made by an Act of the 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.

(a) the appointment, constitution and procedures of the Electoral Commission and for safeguarding its independence; and

(1) If before Independence Day the Constituent Assembly has made an instrument expressed to be a Provisional Organic Law, the instrument takes effect, on Independence Day, as if it were an Organic Law made and coming into effect on that day.

(2) If before Independence Day the Constituent Assembly has made an instrument expressed to be a Provisional Act of the Parliament made for the purpose of bringing any provision of this Constitution into effective operation on Independence Day, the instrument takes effect, on Independence Day, as if it were an Act of the Parliament made and coming into effect on that day.

Secondly, the Organic Law, which was passed by the Constituent Assembly on 14th September, 1975, and is headed:

“A Provisional Organic Law to implement Section 125 (electorates) and Section 126 (elections) of the Constitution by providing for:

(1) Section 2, Parts IV, V, VII, IX, X (other than Sections 72, 73, 79 and 80) and XI (other than Sections 82, 83, 95 and 96), Section 99, Parts XIII (other than Sections 126, 130, 136, 138, 139 and 140), XIV (other than Sections 148, 152, 153, 169 and 171), XV and XVIII and Sections 246 and 247 are intended to take effect, as provided for by Section 12(3)(a) (Organic Laws) of the Constitution as an Act of the Parliament.

Any question as to whether a person has been validly elected as a member of the Parliament or whether the seat of a member has become vacant shall be determined by the National Court.

This Law takes effect for the purposes of the first general election to be held after Independence Day.”

On the question of whether Pt. XVIII, which by virtue of s. 1 of the Organic Law is expressed to take effect as an Act of the Parliament, is invalid for thus contravening the requirement in s. 126(7)(d) of the Constitution, I have had the advantage of also reading in draft the judgment of my brother Williams, who puts the matter in a somewhat different perspective to the manner argued before us by Mr. Young, counsel for the respondent.

His Honour says that the question is not one to be looked at as if Pt. XVIII was legislation passed by the Parliament after Independence, which may or may not be unconstitutional. He says that what gives Pt. XVIII its very life and as a necessary consequence validity, is the Constitution itself. Virtually what his Honour is saying is that there can be no clearer indication of what was necessary for compliance with s. 126(7) and no clearer indication of what might be enacted under s. 12(3) than that which the Constituent Assembly itself provided for in the proposed Organic Law, and further, having so provided, the Assembly specifically inserted s. 266(1) into the Constitution to bring such provisions into effect at the moment of Independence.

I agree with this reasoning. What flows from it is that the Constituent Assembly clearly envisaged that under s. 12(3) matters which could be the subject of an Organic Law may be therein enacted with the status of ordinary Acts of Parliament. That it provided that s. 3 of the Organic Law should be “Organic” in the real sense is perhaps paying lip-service to the requirements of s. 126(7) of the Constitution. All that section does is re-enact in different words s. 135 of the Constitution.

If s. 126(7) were mandatory as opposed to directory, and the Organic Law had in fact been passed after Independence, the matter may be different. That it is not mandatory is in my view clear. For a start, there is no time fixed or indicated within which Organic Laws should be enacted. As an example those required under s. 129 and s. 130 to deal with the integrity of political parties and candidates have never been enacted. It was because of apprehension as to when the Parliament of the newly independent Papua New Guinea might enact the Organic Laws authorized by the Constitution, that led the Constituent Assembly itself to create those Organic Laws it felt were required at Independence by the system of Provisional Organic Laws. The Deputy Chief Justice has referred to the rush involved in such exercise in his draft judgment.

In Liverpool Borough Bank v. Turner[cdlxxviii]⁹ Lord Campbell said “No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of the courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.” In Pearse v. Morrice[cdlxxix]¹⁰, Taunton J. said that he understood “the distinction to be, that a clause is directory where the provisions contain mere matter of direction and nothing more, but not so where they are followed by such words as ‘that anything done contrary to the provisions shall be null and void to all intents’.”

Looking then at s. 126(7) first. It gives no clear guideline at all as to what extent an Organic Law should provide for appeals to the National Court in electoral matters. It certainly does not provide that an Organic Law “alone”, “solely” or “exclusively” should so provide. Nor does it provide that any provision in any other law contrary to its requirement should be invalid. The whole concept of Organic Laws is that, when they are passed as such, they become very difficult to amend (s. 17 of the Constitution) and secondly, when they are passed as such, any ordinary Act inconsistent with them must be construed subject to them (s. 10 Constitution) and they, of course, must prevail. In other words when Parliament is satisfied to enact as an Organic Law in the strict sense provisions, similar to those in Pt. XVIII, then the new Organic Law will attain the full status of an Organic Law and prevail over the present Pt. XVIII which, at that point of time would, in all probability, be repealed in any event.

We are not dealing here with the usual problems one strikes with subordinate or delegated legislation. The legislative power of the people is vested in the National Parliament (Constitution s. 100). The Parliament can legislate on all matters so long as the Acts it passes are not inconsistent with the Constitution. So long as the Constitutional provision is only directory in its requirement for the subject matter of such legislation to be an Organic Law, until Parliament enacts such Organic Law the question is can an Act of the Parliament on the same subject matter forming part of an Organic Law stand? The Constituent Assembly obviously adopted the attitude that it should and could so stand. The heading to the provisional Organic Law specifically states that its purpose was to implement s. 125 and s. 126 of the Constitution. The fundamental principle adopted by the Constituent Assembly, in my view, is that it would be foolish to pass in unnecessary haste an Organic Law in the strict sense, which would be so difficult to amend later, if the requirement to do so was not mandatory but only directory, particularly if doubt existed as to whether the new law needed a period of trial before becoming subject to the restrictions imposed by s. 17 of the Constitution.

I believe that in providing that Pt. XVIII take effect as an Ordinary Act in s. 1, the Constituent Assembly was deliberately leaving the question of an Organic Law on appeals in election matters to the Parliament to be, to a time when it felt it could properly so enact it. To hold otherwise would be to leave a gap in the law and totally deprive candidates at elections of the right to appeal against successful candidates who had for example broken the offence making provisions of Pt. XVIII of the Organic Law which includes the Criminal Code itself. In Holmes v. Bradfield R.D.C.[cdlxxx]¹¹, Finnemore J. said: “the mere fact that the results of applying a statute may be unjust or even absurd does not entitle this court to refuse to put it into operation”, but if there are two different interpretations of the words in an Act, “the courts will adopt that which is just, reasonable and sensible rather than that which is or appears to them to be none of those things”. I therefore believe that if an Act of the Parliament creates an Organic Law giving the status of an Ordinary Act only to matters which are required in a directory rather than in a mandatory manner to be the subject of an Organic Law, such provisions have full legal effect, until Parliament in its considered judgment decides it is appropriate to enact an Organic Law which is suitable to be cloaked with the invulnerability of an Organic Law provided by the Constitution.

As to the second argument raised by Mr. McAlary for the appellant that qualifications could not be the subject of a petition under Div. 1, I do not accept it. The residential, age and indeed citizenship qualifications provisions of the Constitution are mandatory, and to hold that a defeated candidate cannot rely on breach of them as a ground to contest the validity of an election, but be forced to leave the matter to the discretion of Parliament, would be to deprive such candidate of his own rights to see the Constitution obeyed. I agree with the reasons advanced by the Deputy Chief Justice for rejecting this ground and holding the judge of the first instance correct in so doing in the National Court.

In my opinion both the appeal and the application for an injunction should be dismissed and the usual order for costs should follow, that the appellant pay the respondent’s costs in these proceedings.

Application for writ of prohibition dismissed. Appeal dismissed. Order for costs.

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[cdlxx]Infra p. 435.

[cdlxxi](1958) 75 W.N. (N.S.W.) 496.

[cdlxxii][1975] 2 All E.R. 723.

[cdlxxiii][1976] P.N.G.L.R. 491.

[cdlxxiv](1907) 5 C.L.R. 201.

[cdlxxv][1962] Tas. S.R. 5.

[cdlxxvi][1975] 2 All E.R. 723.

[cdlxxvii][1961] 3 All E.R. 354.

[cdlxxviii][1860] EngR 1276; (1861) 30 L.J. Ch. 379 at p. 380.

[cdlxxix](1834) 2 A. & E. 84 at p. 96.

[cdlxxx] [1949] 2 K.B. 1 at p. 7.

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Papua New Guinea Law Reports

Moresby Northeast Parliamentary Election Petition; Lowa v Damena [1977] PGLawRp 560; [1977] PNGLR 429 (4 November 1977)

Papua New Guinea Law Reports - 1977