SCR No 2 of 1984; Re New Ireland Provincial Constitution [1984] PGLawRp 471; [1984] PNGLR 81 (27 April 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 81 - SCR No 2 of 1984; New Ireland Provincial Constitution 

[1984] PNGLR 81

SC268

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN THE MATTER OF A SPECIAL REFERENCE UNDER S. 19 OF THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AND IN THE MATTER OF THE NEW IRELAND PROVINCIAL CONSTITUTION

Waigani

Kidu CJ Kapi DCJ McDermott J

30 March 1984

27 April 1984

PARLIAMENT - Members - Declaration of financial interests - Failure to declare - Prohibition on standing for election ever again - Prohibition contrary to National Constitution and invalid - New Ireland Provincial Constitution, s. 18(1)(h) - Constitution, s. 50(2).

CONSTITUTIONAL LAW - Validity of Provincial Constitution - Prohibition on standing for provincial elections for breach of Provincial Constitution - Prohibition contrary to National Constitution - New Ireland Provincial Constitution, s. 18(1)(h) - Constitution, s. 50(2).

Section 18(1)(h) of the New Ireland Provincial Constitution provides that “Nobody can become, or remain either an elected or appointed member of the Assembly if ... he fails, within 60 days of being required to do so, to make the disclosures required by s. 19(a),...”.

On a reference under s. 19 of the Constitution as to the validity of s. 18(1)(h):

Held

N1>(1)      A law relating to the exercise of rights to vote and stand for public office may, pursuant to s. 50(2) of the Constitution regulate the rights but may not prohibit them.

N1>(2)      Section 18(1)(h) of the New Ireland Provincial Constitution is unconstitutional in that it prohibits those who breach s. 19(a) from ever nominating to stand for New Ireland Provincial Elections.

Cases Cited

S.C.R. No. 2 of 1981; Re s. 19 of the Constitution [1981] P.N.G.L.R. 518.

S.C.R. No. 2 of 1982; Re Organic Law on National Elections (Amendment) Act 1981 [1982] P.N.G.L.R. 214.

Reference

This was a reference under s. 19 of the Constitution, by the New Ireland Provincial Executive, of four questions (see 82 hereunder) relating to the validity of certain sections of the New Ireland Provincial Constitution.

Counsel

B. Narokobi, to argue the affirmative case.

A. J. Tadabe, to argue the negative case.

C. Bourke, for certain members of the Provincial Assembly.

Cur. adv. vult.

27 April 1984

KIDU CJ: The New Ireland Provincial Executive referred the following questions for an opinion by this Court pursuant to s. 19 of the National Constitution:

N2>“(i)     Are ss 18(1)(h), 20(4)(f), 20(6) and 20(7) of the New Ireland Provincial Constitution invalid and ineffective as against the National Constitution and the Organic Law on Duties and Responsibilities of Leadership? The National Constitutional provisions are — 28, 37, 38, 41, 42, 49, 50, 59, 62, 99, 100, 103, 104, 139, 155, 158 and 159, Constitutional Amendment No. 1 and the Organic Law on Provincial Government.

N2>(ii)      Does the seat of a sitting member of the New Ireland Provincial Assembly become automatically vacant if for whatever reason that member does not or fails, within 60 days of being required to do so, to make disclosure of his assets, sources of income and financial responsibilities and liabilities on his becoming a member, and on every anniversary of that date?

N2>(iii)     Does the seat of a sitting member of the New Ireland Provincial Assembly become automatically vacant where:

(a)      that member makes his disclosure within sixty (60) days of being required to do so, of his assets, sources of income and financial responsibilities,

(b)      and either lodged within the sixty (60) days period but not received by the speaker in time, or received after the sixty (60) day period?

N2>(iv)     If the Honourable Court’s opinion is:

(i)       No! and

(ii)      Yes!

(iii)     (a) and (b) Yes! does it follow that such members shall not be eligible again to become or remain either as elected or appointed members of the Provincial Assembly?”

BACKGROUND OF THE REFERENCE

The writ for the second provincial election, for New Ireland Province was returned on 28 December 1982. Under s. 20(1) a member takes his or her seat on the following his or he “on the day following the day fixed for the return of the writ for the election in the constituency for which he was elected”. If he or she is an appointed member he or she takes his or her seat appointment by the Provincial Assembly.

Section 19(1) of the New Ireland Provincial Constitution (the “Provincial Constitution”) provides:

N2>(ii)      A Member of the Assembly must:

(a)      disclose his assets, sources of income and financial responsibilities and liabilities on his becoming a member and on every anniversary of that date, ...”

All current members of the Assembly took their seats on 29 December, 1982. Within sixty days after that they all complied with s. 19 of the Provincial Constitution.

Certain members failed to disclose their assets and liabilities as required by s. 19(1) on the anniversary after they took their seats or within sixty days thereafter. Under s. 18(1)(h) they lose their seats in the Assembly.

If this is so, s. 20(4) of the New Ireland Provincial Constitution declared their seats vacant and the speaker of the Assembly (as required by s. 20(b)) had to inform members of the Assembly of these vacancies. The speaker took no such action. He awaits the decision of this Court.

PRELIMINARY MATTERS

Miss Bourke, lawyer for three members of the Provincial Assembly, submitted that Questions (ii), (iii) and (iv) are not within the ambit of s. 19(1) of the National Constitution as they do not involve “... 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.” Neither Mr Narakobi nor Mr Tadabe argued this point.

The New Ireland Provincial Constitution is a law made under the Organic Law on Provincial Government. It is not declared to be a Constitutional Law by the National Constitution. “Constitutional Law” is defined by section sch. 1.2(1) of the National Constitution as meaning the National Constitution and any law altering the Constitution and an Organic Law. An Organic Law is described by s. 12(1) of the National Constitution thus:

N2>(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 authorised by this Constitution; and

(b)      not inconsistent with this Constitution; and

(c)      expressed to be an Organic Law.”

Part VIa (ss 187A to 187J) of the National Constitution provides for the establishment of a system of Provincial Government and enables the National Parliament to do this by an Organic Law. This Organic Law is the Organic Law on Provincial Government. It is this Organic Law which says that a Provincial Constitution “... takes effect for the purposes of any law of Papua New Guinea as if it were an Organic Law ...” (See s. 13 of the Organic Law). Neither Pt. VIA nor s. 12 of the National Constitution seems to sanction this provision. However, as the matter has not been fully argued, I am not prepared to make a definite ruling one way or the other.

QUESTION (I)

The answer to this question depends on the constitutional validity of s. 18(1) of the New Ireland Provincial Constitution (hereinafter referred to as “the Provincial Constitution”).

It is my opinion that ss 20(4)(f), 20(6) and 20(7) of the Provincial Constitution do not contravene any provision of the Organic Law on Provincial Government (hereinafter referred to as “the Organic Law”) nor any provision of the National Constitution. These provisions in effect constitute part of the Leadership Code for the New Ireland Provincial Assembly Members (except the Premier who is covered by the National Leadership Code (see s. 26(1)(d) of the National Constitution). There is no prohibition in the National Constitution or the Organic Law that a Provincial Constitution or law may not make provisions such as ss 19(1)(h), 20(4), 20(6) and 20(7) of the New Ireland Provincial Constitution. I cannot see how ss 28, 37, 38, 41, 42, 49, 50, 59, 62, 99, 100, 103, 104, 139, 155, 158 and 159 of the National Constitution vitiate ss 19(1)(h), 20(4)(h), 20(6) and 20(7) of the New Ireland Provincial Constitution. But further consideration of these provisions is not necessary because of what I say from hereon.

Section 18(1) of the New Ireland Provincial Constitution provides, inter alia, as follows:

N2>“(i)     Nobody can become, or remain either an elected or appointed Member of the Assembly if ...

N2>(h)      he fails, within 60 days of being required to do so, to make the disclosures required by section 19(a); ...”

Section 18(1) is similar to s. 103(3) of the National Constitution. But the latter commences thus:

“A person is not qualified to be, or to remain, a Member of the Parliament if ...” (Emphasis added).

The intention of both provisions was to make certain that particular persons did not become Members of Parliament (I use the word “Parliament” to include National Parliament and New Ireland Provincial Assembly) or to remain so if they were disqualified under the respective provisions.

In my view s. 18(1)(h) meant to say that if a Member of the Provincial Assembly failed to furnish a return required by s. 19(1) he or she was to be disqualified from remaining as a member of the Assembly. However, the way s. 18(1) was drafted has (quite clearly) the following effects:

N2>(1)      Nobody can become a Member of the Assembly if he fails, within sixty days of being required to do so, to make the disclosures required by s. 19(a).

N2>(2)      Nobody can remain a member of the Assembly if he fails, within sixty days of being required to do so, to make the disclosures required by s. 19(a).

I will call par. (1) above “category 1” and par. (2) “category 2”.

Category 1 stops those who do not comply with s. 19(1) from becoming members of the Assembly again. It says that if A breaches s. 19(1) he can never (“Nobody can become”) become a member of the Assembly ever again.

Category 2 merely ensures that a member who breaches s. 19(1) does not stay as a member of the Assembly. It does not stop him from standing again for the Assembly.

In my opinion, category 1 is quite clearly inconsistent with s. 50 of the National Constitution, which is in the following terms:

N2>“50.    Right to vote and stand for public office.

(1)      Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who:

(a)      ... or

(b)      ...

has the right, and shall be given a reasonable opportunity:

(c)      to take part in the conduct of public affairs, either directly or through freely chosen representatives;

(d)      to vote for, and to be elected to, elective public officer at genuine, periodic, free elections; and

(e)      to hold public office and to exercise public functions.

(2)      The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.” (Emphasis added.)

Category 1 does not regulate the right to stand for elective public offices, it prohibits it. In my view, therefore, s. 18(1) (Category 1) is unconstitutional in that it prohibits those who breach s. 19(a) from ever standing again for the New Ireland Provincial Assembly.

Is this Court able to save the constitutionally valid parts of s. 18(1)? I think not. If the court were to “blue pencil” the words “Nobody can become” from s. 18(1), this would amount to the provision being re-drafted by the court. Without doubt s. 18(1) is quite valid when it says that “Nobody can become ... Member of the Assembly if ... he is not entitled to vote in a provincial election ...” Such a person can become a member after he or she has attained voting age, which is eighteen years.

As it is not the function of this Court (or any court) to re-write or re-draft any law, I can only say that s. 18(1) of the New Ireland Provincial Constitution is unconstitutional, in toto, and is therefore invalid and ineffective.

I would answer question (i), as it relates to s. 18(1), in the affirmative because it is contrary to s. 50 of the National Constitution.

The effect of this is that although a member of the New Ireland Provincial Assembly (apart from the Premier) fails to comply with s. 19(1) of the Province’s Constitution, there is no way he or she can be removed from the Assembly.

Section 20(4)(f) of the Provincial Constitution has no relevance here because it does not relate to s. 18 of the Provincial Constitution in any way — it relates specifically to s. 21 of the Provincial Constitution. Section 21 deals with dismissal of members of the Assembly. It says an Act of the Assembly may provide for dismissal or suspension of members. It really has nothing to do with a member’s failure to comply with s. 19(1).

Section 18(1)(h) of the Provincial Constitution is open to two interpretations. It could mean:

N2>(a)      that a member who fails to disclose his assets, sources of income and financial responsibilities and liabilities within sixty days of becoming a member, is disqualified from ever becoming a member; or

N2>(b)      that a member who fails to disclose his assets and liabilities after he has been required to do so within sixty days after he becomes a member, is disqualified from remaining as a member.

It is difficult for me to say which of the above interpretations should prevail. Section 18(1)(h) should be re-drafted. It is not this Court’s function to do that.

As I have held that s. 18(1) of the New Ireland Provincial Constitution is unconstitutional, I consider it unnecessary to consider whether that provision is contrary to any other sections of the National Constitution.

SECTION 11(C)

This provision of the Provincial Constitution says:

“To stand for election to the Assembly, or to be entitled to be nominated for appointment as a Member of the Assembly, a person must at the time be nominates for a seat in the Assembly or is nominated for appointment:

(a)      ...; and

(b)      ...; and

(c)      not be disqualified from becoming a Member in accordance with s. 18 of this Constitution.” (Emphasis added.)

Paragraph (c) is quite clearly unconstitutional. It purports to disqualify persons who have been disqualified under s. 18 from ever nominating to stand for New Ireland Provincial elections. Section 50 of the National Constitution quite clearly makes it unconstitutional.

My answers to the questions are as follows:

N2>(i)       Yes, in relation to s. 18(1)(h) of the Constitution of the New Ireland Province.

N2>(ii)      (iii) (iv) Not necessary to answer.

KAPI DCJ: This is a reference made by the New Ireland Provincial Executive Council, under s. 19 of the Constitution, on the questions set out in the reasons for judgment of Kidu C.J. at 82.

A preliminary point was raised as to the lack of jurisdiction of the court in considering questions 2 and 3. Miss Bourke, who appeared by leave, submitted that questions 2 and 3 do not involve an “interpretation” or an “application” of a constitutional law. Section 19 of the Constitution was considered in Supreme Court Reference No. 2 of 1981; Re s. 19 of the Constitution [1981] P.N.G.L.R. 518. Quoting from the headnote:

“The purposes of a special reference to the Supreme Court under s. 19(1) of the Constitution, of any question “relating to the interpretation or application of any provision of a Constitutional Law” are:

(a)      to establish what the law on a particular constitutional point is; to interpret a word or words or provision of a relevant constitutional law; and

(b)      to establish what the constitutional law is on a particular issue; to apply by interpreting the same, any constitutional law which is relevant to the issue raised in the reference.”

Do these questions come within the scope of s. 19 as set out above? The provisions referred for consideration arise out of the New Ireland Provincial Constitution (hereinafter referred to as the Provincial Constitution). This is not a constitutional law as defined by the National Constitution: Sch. 1.2 of the Constitution. However an interesting argument arises under s. 13 of the Organic Law on Provincial Government which is in the following terms:

N2>“13.    Legal Status of Provincial Constitutions

The constitution of a province that has come into effect in accordance with Section 7 takes effect for the purposes of any law of Papua New Guinea as if it were an Organic Law, but may be altered only in a manner prescribed by Section 11.”

Miss Bourke submitted to the effect that this provision does not make a Provincial Constitution an Organic Law for the purposes of s. 19 of the National Constitution. It follows, therefore, that questions 2 and 3 do not involve an interpretation or an application of a constitutional law. However this is not as straightforward as it appears. Section 11(b) of the Organic Law on Provincial Government seems to reinforce the argument that a Provincial Constitution, for the purposes of any law, is an Organic Law. However, I do not wish to express any conclusive view on this issue as the point was not fully argued. Miss Bourke only referred to this argument in passing, and no other counsel made any detailed submissions. This preliminary point has to be fully argued in another case. For this reason, I decline to deal with the issues that are raised by questions 2 and 3.

It is not disputed that question 1 and 4 raise considerations of the effect of s. 18(1)(h) of the Provincial Constitution on the right to stand for public office under s. 50 of the National Constitution. They therefore come within s. 19 of the Constitution.

Question 1 has been drafted in very uncertain terms. It made reference to certain provisions of the Provincial Constitution and to the National Constitution without specifying the issues that are raised. However, it became clear during submissions that the whole reference hinges around the application of s. 50 of the National Constitution to s. 18(1)(h) of the Provincial Constitution.

Before I can consider the application of s. 50 of the National Constitution, I must consider s. 18(1)(h) of the Provincial Constitution. I set out below the whole of s. 18(1) of the Provincial Constitution:

N2>“18.    Disqualification from Membership of the Assembly

(1)      Nobody can become, or remain either an elected or appointed Member of the Assembly if:

(a)      he is not entitled to vote in a provincial election (Section 16); or

(b)      he is or becomes of unsound mind within the meaning of a law relating to the protection of the persons and property of persons of unsound mind; or

(c)      during the 5 years before the date on which he either:

N5>(i)       nominated for election to become a Member of the Assembly; or

N5>(ii)      was nominated by the Premier to be appointed a Member of the Assembly,

he was sentenced to death or to a term of imprisonment of 5 months or more unless on appeal the sentence was reduced below 5 months or he was given a free pardon; or

(d)      subject to Subsection (2) (which deals with appeals from sentence), he is under sentence of death or a sentence of imprisonment for 5 months or more; or

(e)      he is an officer of the National Public Service or an officer of the Provincial Government (including being a member of the Provincial Secretariat); or

(f)      he is a Member of the National Parliament; or

(g)      he is or has been dismissed as a Member of the Assembly in accordance with this Constitution (Section 21); or

(h)      he fails, within 60 days of being required to do so, to make the disclosures required by Section 19(a); or

(i)       he is otherwise disqualified under this Constitution.”

The meaning of the word “remain” in s. 18(1) is not in doubt. This applies only to those who are elected or appointed and have taken up their seats in the Assembly. They may be disqualified on any of the grounds set out from (a) to (i). What arises for consideration is the meaning of “nobody can become”. Mr Narokobi, who argued the case for the affirmative, submitted that these words disqualify a person from ever standing for any future elections. Miss Bourke, who argued the negative case, submitted that the words “nobody can become” deal with the situation where, after an election, a member may be disqualified from taking up his seat. She submitted that they do not deal with disqualification from any future elections. She, in effect, submitted that s. 18 was only concerned with the life of one term of the Assembly.

I am in agreement with the submission made by Mr Narokobi. The words “nobody can become” relate to the whole process of becoming a member. In relation to a sitting member who is disqualified under s. 18(1)(h), he is also disqualified from becoming a member in a future election. In other words, he cannot nominate to become a member. The word “become” is also used in the sense I have adopted in s. 18(1)(c)(i).

I realise that there is merit in the submission made by Miss Bourke. However, to adopt her submission would be to alter the meaning of the words. The effect of her submission is that an elected or appointed member is simply prevented from taking up his seat. If this was the intention of the legislature, it would have said so — “Nobody may take up his seat”.

Mr Narokobi’s argument is supported further by s. 11(c) of the Provincial Constitution which is in the following terms:

N2>“11.    Member’s Qualifications

To stand for election to the Assembly, or to be entitled to be nominated for appointment as a Member of the Assembly, a person must at the time he nominates for a seat in the Assembly or is nominated for appointment:

(a)      ...

(b)      ...

(c)      not be disqualified from becoming a Member in accordance with Section 18 of this Constitution.”

These two provisions, when read together, point to the conclusion that a ground of disqualification under s. 18 prevents that same person from ever becoming a member of the Assembly again. It is obvious that s. 11(c) and s. 18 can only affect those who are disqualified. Miss Bourke sought to argue that s. 11(c) was only meant to apply to disqualifications which were continuing, such as a person who was still serving a sentence under s. 18(1)(d).

First, this submission is contrary to her earlier submission that a disqualification only relates to the life of a term of the Assembly.

Second, if the legislature meant to refer to only certain continuing disqualifications, it would have specified them in s. 11. It did not do this. It referred to the whole of s. 18. The only conclusion that can be reached from this is that the legislature had in mind a member who is disqualified for any of the grounds set out under s. 18. His disqualification does not entitle him to stand for election or be nominated for appointment.

APPLICATION OF THE NATIONAL CONSTITUTION

All counsel are agreed that s. 11 and s. 18 of the New Ireland Provincial Constitution come within the legislative powers of the Provincial Assembly.

Mr Narokobi attacks s. 18 on the following grounds:

“In so far as s. 18(1)(h) of the Provincial Constitution disqualifies a sitting member from remaining a member and disqualifies the same from standing again in future elections, it is contrary to:

(a)      principles of natural justice under ss 59 and 60 of the National Constitution in that the member who is disqualified is not given an opportunity to explain failure;

(b)      the exercise of judicial discretion as set out in the National Constitution (s. 99) in that a member is disqualified without hearing by an independent tribunal.”

However, in my view these submissions do not amount to much because they can be taken care of by the provisions of the Provincial Elections (Interim Provisions) Act 1978 (No. 20 of 1978) passed by the New Ireland Provincial Government. By s. 3 of this Provincial Act, the Provincial Government (Electoral Provisions) Regulation 1977 (No. 4 of 1977) applies. These are national regulations passed under the Provincial Government (Preparatory Arrangements) Act 1974 of the National Government.

Section 204 of the Provincial Government (Electoral Provisions) Regulations 1977 provides as follows:

N2>“204.   Reference of Question of Qualification or Vacancy

A question respecting the qualifications of a member or respecting a vacancy in the provincial legislature may be referred by resolution to the National Court by the provincial legislature and the Court shall thereupon have jurisdiction to hear and determine the question.”

Under this law a person who wishes to question his disqualification or a vacancy created by s. 18(1)(h) may get the Provincial Assembly to refer the matter to the National Court. The party disqualified gets a fair hearing by an independent tribunal. These submissions must fail.

Mr Narokobi’s strongest argument deals with the effect of s. 11(c) and s. 18(1)(h) of the New Ireland Provincial Constitution on the right to stand for public office under s. 50 of the National Constitution in that it prevents a disqualified member from standing for elective office again in the future. Section 50 is in the following terms:

N2>“50.    Right to Vote and Stand for Public Office.

(1)      Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who:

(a)      is under sentence of death or imprisonment for a period of more than nine months; or

(b)      has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph,

has the right, and shall be given a reasonable opportunity:

(c)      to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

(d)      to vote for, and to be elected to, elective public office at genuine, periodic free elections; and

(e)      to hold public office and to exercise public functions.

(2)      The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.”

This provision was fully considered in Supreme Court Reference No. 2 of 1982: Re Organic Law on National Elections (Amendment) Act 1981 [1982] P.N.G.L.R. 214. Kearney Dep. C.J. (as he then was) stated, at 225:

“... I consider that s. 50(1) does two things: first, it affirms that any eligible citizen may hold elective public office; second, every eligible citizen must be ‘given a reasonable opportunity’ to secure such office through the electoral process.”

However, this right may be regulated under s. 50(2). In dealing with the nature of the law that may regulate this right I stated, at 234:

“The reasonable opportunity to exercise the right under s. 50(1) may be regulated by a law under s. 50(2) of the Constitution. For a law to be within the provisions of s. 50(2):

(a)      to the extent that it regulates, it must be a law that is ‘reasonably justifiable for the purpose in a democratic society that has proper regard for the rights and dignity of mankind’;

(b)      can only regulate the exercise of the right but cannot prohibit or take away the right from any class or group of citizens. A law which has this effect is not allowed. See Sch. 1.20 of the Constitution.”

As to what is reasonably justifiable I adopt the test I set out in the above case. I now apply this test to the two issues that arise under s. 11 and s. 18(1)(h). They are:

N2>(a)      Is it reasonably justifiable in a democratic society to disqualify a sitting member for failing to disclose assets?

N2>(b)      Is it reasonably justifiable in a democratic society to disqualify a person from ever standing again for a future election for failing to disclose assets?

(a) Applied to s18(1)(h)

“Nobody can ... remain either an elected or appointed Member of the Assembly if:

...

(h)      he fails, within 60 days of being required to do so ...”

What is reasonably justifiable in a democratic society is to be applied subjectively. This is to be considered in the light of “the purpose” for which the regulation is made. First, I consider that there is no question about the exercise of the right to election to public office for a person who is elected a member of the Assembly. The regulation by this part of s. 18(1)(h) goes to the question of his remaining an elected public officer. I also consider that a member is given “reasonable opportunity” to disclose his assets. The period of sixty days has not been questioned. I consider it is not unreasonable.

The real issue is whether disqualification from being a member is reasonably justifiable? This must be considered in the light of “the purpose” for which this regulation is made. I think that the purpose of this regulation is to ensure that leaders who are in positions of power are not open to corruption or able to use their positions to promote their own personal interests. A declaration of assets shows how assets are acquired as well as giving an indication of their interests which may become the subject matter of their decisions. Compare s. 6 of the Organic Law on the Duties and Responsibilities of Leadership.

Corruption of leaders is widespread throughout the world. Papua New Guinea is no exception. There is another consideration. The practice of the “wantok system” is also widespread. This is part of our culture but it is a dangerous environment for breeding corruption. I think it is reasonably justifiable, in a democratic society, that a member who does not disclose his assets for the current year is liable to abuse his position and there may be no way of knowing his interests. This provision ensures that a member is not exposed to the possibility of using his own position for his own interest without any proper scrutiny. I am of the opinion that this disqualification comes within the ambit of s. 50(2) of the Constitution.

This is no unusual provision. Under the Organic Law on the Duties and Responsibilities of Leadership a National Parliamentarian may be dismissed for failure to disclose assets.

(b) Applied to s18(1)(h)

“Nobody can become ... either an elected or appointed Member of the Assembly if:

...

(h)      he fails, within 60 days of being required to do so ...”

I have found that a disqualification from continuing in a current term of the Assembly is reasonably justifiable in a democratic society.

However, I am of the opinion that disqualification for ever is prohibitive. This is not allowed by s. 50(2) of the Constitution. See Supreme Court Reference No. 2 of 1982 [1982] P.N.G.L.R. 214, and Sch. 1.20 of the Constitution.

The purpose of requiring a declaration of assets can only be served when a person is elected and is in office. It can serve no more purpose when a person is disqualified. It does not have any continuing effect on a person to be elected a member of the Assembly. To disqualify a person who nominates for election to become a member of the Assembly for failure to declare assets in a previous term of office serves no purpose at all. If he were elected, he would be required to do so annually anyway.

The only good reason I can think of for disqualifying a person who has committed the same offence previously from nominating is that he is likely to offend again. This is reasonable and it could be taken care of by a disqualification from nominating for a period of time. Such a law would be in compliance with s. 50(2) of the Constitution. But in my view total prohibition as envisaged in ss 18(1)(h) and 11(c) of the Provincial Constitution is unreasonable and therefore contrary to s. 50(2).

Section 18(1)(h) is not separable from the rest of the section. To separate it would change the whole meaning of the section as envisaged by the legislature. It follows that the whole of s. 18 must fall. This, of course, would render s. 11(c) meaningless.

My answer to the central issue is that s. 18(1)(h) of the New Ireland Provincial Constitution is invalid and ineffective as it is inconsistent with s. 50(2) of the National Constitution.

MCDERMOTT J: The New Ireland Provincial Executive pursuant to the Constitution, s. 19, has sought the opinion of this Court on the constitutionality of ss 18(1)(h), 20(4)(f), 20(6), and 20(7) of the Constitution of the New Ireland Province.

Mr Narokobi for the affirmative case uses a shotgun argument. He peppers these sections with over 19 constitutional law provisions drawn from the National Constitution and Organic Law on Provincial Governments. As the court progressively narrowed the issues, it became clear that the Constitutional Law in question is the Constitution, s. 50, — “Right to Vote and Stand for Public Office”.

There are three other questions stated for opinion. These are questions arising out of provisions of the New Ireland Constitution, not on interpretation vis a vis the National Constitution, but on the meaning of the sections in themselves. I too, appreciate Miss Bourke’s argument that a Provincial Constitution is not an Organic Law — see Constitution, Sch. 1.2, Constitution s. 12(1)(a) and (c), as against s. 13 of the Organic Law on Provincial Government. Whilst this later section may appear to say that a Provincial Constitution is an Organic Law, it cannot extend the definition of “Organic Law” in the Constitution, s. 12. The machinery provisions in Pts II and III of the Organic Law on Provincial Government require closer scrutiny to see what part they play in this argument. Because of the way the argument developed, this preliminary point was not taken or argued by the other counsel. It will have to be reserved for another day in court. The answers to questions (ii) and (iii) hinge on the answer to the first. Question (iv) is really unnecessary.

I return to the issue for opinion. Certain members of the Provincial Assembly are in jeopardy of losing their seats through non compliance with the asset disclosure provisions contained in s. 19(1)(a) read in conjunction with s. 18(1)(h) and s. 20(4)(f) of the Provincial Constitution.

The present Assembly was elected for four years, the writ being returned on 28 December 1982 and the Members taking their seats on the 29 December 1982. There was no problem for the first year of the term as all members duly complied with the requirements to disclose assets. However, certain members did not so comply in the second year of their terms and as at 27 February 1984, seven, possibly nine members (out of an Assembly of twenty) are alleged to be in default.

Section 18 of the Provincial Constitution sets out a number of disqualifying provisions which can affect membership of the Assembly. The commencing words are unfortunate (and understandably authorship is not admitted):

N2>“18.    Nobody can become or remain either an elected or appointed Member of the Assembly if:

(h)      he fails, within 60 days of being required to do so, to make the disclosure required by s. 19(a).”

On the very face of it, the section appears to permanently bar a defaulter from again seeking public office. Under s. 11(c) of this Constitution, such a person would not be eligible to even stand for election. Clearly, a permanent bar is contrary to the Constitution, s. 50, which I paraphrase for simplicity:

“Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age (other than a person who is caught by restrictions relating to conviction and serving sentence for certain offences which do not apply in this case) has the right, and shall be given reasonable opportunity — (a) to take part in, (b) to vote for and to be elected to, and (c) to hold public office.”

Mr Tadabe for the Principal Legal Adviser concedes that an indefinite disqualification is contrary to s. 50, see S.C.R. No. 2 of 1982; Re Organic Law [1982] P.N.G.L.R. 214.

The only way the total prohibition could be sustained is to see if it is one “that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind”. (Constitution, s. 50(2).) I adopt the argument of the Deputy Chief Justice and say it is not so justifiable.

Is there anyway to save s. 18?

Miss Bourke has submitted an interpretation to save s. 18, by looking at the time when the disqualifying act or event occurs. She submits the words “can become” relate to an act occurring up to the time a Member takes his seat that is up to the day after the return of the election writ. This means an offending Member could not take his seat in that Assembly but, could stand at the next election. Further, the words “or remain” relate to a disqualifying act done after the Member takes his seat. Support is sought in s. 11(c) which refers only to “becoming a Member” and thus prohibits those who are not qualified at the time they stand for election but not those who at a later date become disqualified (for non disclosure).

This is a tortuous approach; it introduces an artificiality that is not apparent or warranted by the draftsman’s words. It becomes not a matter of the court giving an interpretation but rather an interpolation. Section 11(c) refers to a disqualifying act. Section 18(h) refers to a disqualifying act — one that prohibits standing (when read with s. 11) or remaining an elected or appointed Member of the Provincial Assembly.

As ss 20(4)(f), 20(6), and 20(7) appear to be self executing provisions, it is not necessary to say anything further in view of my earlier remarks. In answer to the questions asked, I say:

N2>(i)       Yes, in relation to s. 18(1)(h) of the Constitution of the New Ireland Province.

N2>(ii), (iii), (iv)   Not necessary to answer.

Questions answered accordingly.

Lawyer for the affirmative case: Bernard Mulu Narokobi.

Lawyer for the negative case: The Principal Legal Adviser.

Lawyer for certain Provincial Members: Christine Bourke.