SCR No 1 of 1992; Re Constitutional Amendment No 15 Elections and Organic Law on National Elections (Amendment No 1) Law 1991 [1992] PGLawRp 572; [1992] PNGLR 73 (23 March 1992)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 73 - SCR No 1 of 1992; Re Constitutional Amendment No 15--Elections and Organic Law on National Elections (Amendment No 1) Law 1991 

[1992] PNGLR 73

SC425

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN THE MATTER OF THE CONSTITUTION OF PAPUA NEW GUINEA

AND CONSTITUTIONAL AMENDMENT NO 15 - ELECTIONS

AND IN THE MATTER OF THE

ORGANIC LAW ON NATIONAL ELECTIONS (AMENDMENT NO 1) LAW 1991

AND IN THE MATTER OF A SPECIAL REFERENCE

BY THE OMBUDSMAN COMMISSION UNDER S 19 OF THE CONSTITUTION

SCR No 1 of 1992; SPECIAL REFERENCE PURSUANT TO CONSTITUTION, S 19

Kapi DCJ Amet Woods Sheehan Andrew JJ

27-28 February 1992

23 March 1992

CONSTITUTIONAL LAW - Constitutional references - Amendment of Constitution - Validity of amendment - Manner and form requirements.

CONSTITUTIONAL LAW - Special rights of citizens - Right to vote and stand for elections - Regulation thereof - Forfeiture of nomination deposit - Whether regulation "reasonably justifiable".

CONSTITUTIONAL REFERENCES - When Supreme Court performs role of tribunal of fact, law or both.

ORGANIC LAW ON NATIONAL ELECTIONS (AMENDMENT NO 1) LAW 1991 - Subject to compliance with Constitution.

PARLIAMENT - Elections - Validity of Constitutional Amendment - Candidate for election required to pay fee of K1,000 - Constitution s 50(1),(2) and s 103(2).

Facts

The Ombudsman Commission made a special reference to the Supreme Court under s.19 of the Constitution for an opinion on the validity of an amendment to the Constitution by the Constitutional Amendment Law No 15 - Elections and an amendment to the Organic Law on National Elections by the Organic Law on National Elections (Amendment No 1) Law, 1991.

The effect of the Constitutional amendment was to increase a candidate's deposit for nomination for national elections from K100 to K1,000, and of the amendment to the Organic Law, to substitute provisions which provided for forfeiture of the deposit if the candidate was unsuccessful for the existing provisions which provided for forfeiture of the deposit only if his total number of votes was less than 10 percent of the total votes polled by the successful candidate.

Issues

N1>1.       What is the validity of amending provisions which increased the nomination fees from K100 to K1,000?

N1>2.       The validity of the amendment of the Organic Law which stipulated the increased nomination fee and provides for its forfeiture if the candidate is unsuccessful.

Held

N1>1.       Section 103 of the Constitution contain several express limitations upon the rights in section 50 to stand for public office. These are inter alia deposit of a fee of K1,000 introduced by Constitutional amendment to s.103 the validity of which is guaranteed by the fact that s.50 (the right to stand for public office) is subject to express limitations imposed by the Constitution.

N1>2.       The amendment to the Organic law gives effect to section 103 of the Constitution as amended which requires an increased nomination fee and therefore it is not inconsistent with the Constitution.

N1>3.       In so far however, as that amendment provides for the forfeiture of the deposit of an unsuccessful candidate it is the amendment of a provision which regulates the constitutional right to stand for public office and therefore must be reasonably justifiable for that purpose in a democratic society that has proper regards for the rights and dignity of mankind.

The sum of K1,000 deposit is a very high one in the circumstances of Papua New Guinea and to provide for its forfeiture if the candidate is unsuccessful is to jeopardise the underlying principle of free and equal participation which permeates the Constitution.

Counsel

D Cannings for Ombdsman Commission

D Garo for Principal Legal Advisor and Electoral Commissioner

PR Payne for the National Parliament

Cases cited

Commonwealth Freighters Pty Ltd v Sneddon [1959] HCA 11; (1959) 102 CLR 280

Mairi v Tololo & Ors [1976] PNGLR 125

Okuk v Nilkare [1983] PNGLR 28

SC Reference No 2 of 1982 [1982] PNGLR 214

KAPI DCJ: I have had the opportunity of reading the draft judgement of the majority and I agree with the reasons and answers given to all the questions, However, I wish to add a few comments of my own.

Certain materials have been tendered by affidavit and the court has been urged to make findings of fact to form the circumstances to which certain constitutional laws have to be interpreted and applied. Counsel for the Ombudsman Commission and the National Parliament relied on the leading judgement of Kearney DCJ in SC Reference No 2 of 1982 (1982) PNGLR 214 which sets out the proper approach to findings of facts. I agreed with Kearney DCJ on principles relating to findings of facts in that case. Strictly speaking, this part of the judgement is obiter and the true position is as stated by the Chief Justice. In the 1982 Reference, three questions were referred:

N2>1.       Is the Organic Law on National Election

(Amendment) Act of 1981 invalid, in that it was not made in the manner and form required by s 14(1), (2), (4) and (5) of the Constitution?

N2>2.       Does the Organic Law on National Election

(Amendment) Act of 1981, by requiring a candidate to validate his (her) nomination with a K1000 deposit, impose an unreasonable restriction upon the right of ordinary citizens t be elected to Parliament, which is contrary to and inconsistent with s 50(1) and (2) of the Constitution?

N2>3.       Does the Organic Law on National Election

(Amendment) Act of 1981 discriminate against citizens on the basis of wealth and thus deny all citizens the same equal right to stand for election to Parliament, contrary to and inconsistent with s 55 of the Constitution?

The Court answered Question 1 in the affirmative. It was not necessary in the light of the answer to Question 1 to deal with the other two questions. The Chief Justice made the following observations at p 221:

"It seems to me that the question of who bears the onus of proof does not arise in the present reference. I say this for the simple reason that, in relation to factual materials relevant for purposes of Questions 2 and 3, the referring authority has borne the burden "voluntarily" so to speak and rightly so. No adversary or opponent was available to do so anyway. Both the learned Principal Legal Adviser in person and the Parliamentary Counsel, through Mr. Sam, merely appeared to assist the Court.

It might be that in relation to the issue of whether the K1000 nomination fee was reasonably justifiable, the Constitution s 38 applies. However, as there was no party relying on s 38(1) for the constitutional validity of the Act in question and as no submissions were made, the court cannot be in a position to rule on the issue one way or the other."

I draw attention to this matter because the jurisdiction given to this Court under s 18 and s 19 of the Constitution is of a special character. When exercising this special jurisdiction, it is called upon to express an opinion on issues relating to interpretation and application of a constitutional law and not adjudication of facts. The Supreme Court has already decided that under a s 18 reference, a Constitutional Law issue arises when findings of facts are determined by a Tribunal which has jurisdiction to determine the facts. If a Section 18 reference is made without determination of facts, this court will send the mmatter back to the tribunal of fact to make those findings. SCR 5 of 1982: Re Petition of Hugo Bergheuser (1982) PNGLR 379, SCR 3 of 1982 (1982) PNGLR 405. A Section 19 reference provides for questions to be referred on hypothetical facts. SCR 3 of 1982 (1982) PNGLR 405.

However, this Court would be a tribunal of fact as well as tribunal of law if the proceedings are brought under s 57 of Constitution. The Supreme Court has concurrent jurisdiction with the National Court for the protection and enforcement of guaranteed rights and freedoms. This course was not adopted in this case.

The end result of all this reasoning is that this Court cannot settle or adjudicate on any question of facts. The position I would take is this. Most of the facts tendered in affidavit by the Ombudsman Commission have not been challenged or contested. Consistent with the matters I have set out, I would simply assume those facts for purposes of this s 19 reference. Whether these facts can be proven before a tribunal of fact is another matter.

Consideration of constitutional issues raised in Questions 2, 5, 6,7, 8, 10, 11, 15, 17 do not raised any consideration of facts. We have declined to answer Question 9, 13, 14, 16 and 18.

For the purposes of Question 1, section 11 of the Organic Law on National Elections (Amendment No.1) Law 1991 has been found to be valid because of the operation of s 103(2) of Constitution (as amended). No consideration of facts are relevant in considering the meaning and application of s 103(2) of the Constitution.

As to Section 12 of the Organic Law on National Elections (Amendment No.1) Law 1991 in Question 1, I have assumed that a figure of K1000 fee is so high that there would be many people in Papua New Guinea who would not afford it.

As to Question 3, I have assumed the same facts as set out in Question 1.

For the purposes of Question 4, I have assumed that all the necessary requirements were complied with.

For the purposes of Question 12, I have assumed all the facts set out in the affidavit of Mr. Ano Pala.

For purposes of Question 19, I have assumed that there was opportunity to debate and in fact there was debate on the proposals.

AMET WOODS SHEEHAN ANDREW JJ: This is a special reference to the Supreme Court made by the Ombudsman Commission pursuant to s 19 of the Constitution applying for the court's opinion as to the validity of an amendment to the Constitution by Constitutional Amendment Law No 15 - Elections, and as to the validity of amendments to the Organic Law on National Elections by the Organic Law on National Elections (Amendment No 1) Law 1991.

The effect of the amendments which concern this reference was to increase a national election candidate's deposit on nomination from K100 to K1,000 and for the deposit to be forfeited if the candidate failed to be elected.

A similar reference by the Ombudsman Commission was determined in 1982 following a similar increase in a candidate's deposit from K100 to K1,000 made by the National Parliament at that time (see SC Reference No 2 of 1982 [1982] PNGLR 214. On that occasion, the court found that a deposit of K1,000 denied a majority of eligible citizens their "reasonable opportunity" to stand for election to Parliament, in terms of s 50(1) of the Constitution. The amendment at that time, however, was to the Organic Law on National Elections and is distinguishable from the present situation, for we are here concerned also with an amendment to the Constitution itself. Furthermore, as the court then indicated, the value of money in terms of nominal amounts changes quickly and circumstances alter such that the answer of the court is necessarily not valid for any time other than the present.

QUESTION 1

"Do ss 11 and 12 of the Organic Law on National Elections (Amendment No 1) Law 1991 which require all candidates for election to the National Parliament to validate their nomination with a deposit of K1,000 and all but successful candidates to forfeit their deposit to the State, impose an unreasonable restriction upon the right of ordinary citizens to be elected to the Parliament, which is contrary to and inconsistent with ss 50(1)&(2) of the Constitution?"

The conduct of Parliamentary elections is provided for by the Organic Law on National Elections, made pursuant to the general authority in the Constitution, s 126(1). It is to be noted that s 126(3) explicitly recognizes that the system of election must accord with the Constitution, s 50. The Organic Law provides for an Electoral Commission to organise and conduct elections, for electorates and redistributions, the enrolment of electors, nominations, polling and so on (see per Kearney Dep CJ, SC Reference No 2 of 1982 [1982] PNGLR 214 at 221). It follows that these questions can only be answered properly by first considering the validity of the amendment to the Constitution and to then consider the effect and validity of the amending Organic Law.

The relevant Constitution amending provisions are:

"Constitutional Amendment No 15 - Elections

Being a Law to alter the provisions of the Constitution relating to elections,

MADE by the National Parliament to come into operation in accordance with a date fixed in the National Gazette by the Head of State, acting with, and in accordance with, the advice of the Prime Minister.

1.       Qualifications for and disqualifications from membership (Amendment of section 103).

Section 103 of the Constitution is amended in Subs (2) by adding the following words:

"... and must pay a nomination fee of K1,000". (Certified on 23 December 1991)"

Leaving aside for the moment the question of whether or not the Parliament adopted the correct procedures in amending the Constitution (as this is the subject of later questions), it is clear that the Constitution s 103(2) requires that a candidate for election to National Parliament now pay a `fee' of K1,000, otherwise he is not qualified. Section 50(1) of the Constitution commences with the words: "Subject to the express limitations imposed by this Constitution, ..." and provides as a special right of citizens of full capacity and who have reached voting age (subject to some exceptions) that they have the right, and shall be given a reasonable opportunity to be elected to public office at genuine, periodic, free elections. By s 50(2) this right 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.

The wording of s 50, viz, "Subject to the express limitations imposed by THIS CONSTITUTION" is important because it means that the special rights of citizens contained in s 50 can only be limited by the Constitution itself. Sections 8, 9 of the Constitution in defining the laws of Papua New Guinea draw a distinction between `THIS CONSTITUTION' and the Organic Laws and all other laws. Whilst an Organic Law is a Constitutional Law (Sch 1.2) it cannot expressly limit the rights in s 50 of the Constitution although it may regulate those rights due to s 50(2).

Section 103 of the Constitution contains several express limitations upon the rights in s 50 to stand for public office of otherwise qualified persons insofar as that applies to the office of member of the National Parliament. These are express age, residency and other limitations and now an express limitation of a fee of K1,000, otherwise one is not qualified. Section 50 of the Constitution is subject to the express limitations imposed by the Constitution and s 103 is just such an express limitation. The two sections can quite easily be read together (see Okuk v Nilkare [1983] PNGLR 28).

It follows that the Constitution now requires a fee of K1,000 otherwise one is not qualified under s 103 to be a member of the National Parliament. This is an express constitutional requirement and not a regulation of the right in s 50 to stand for elective office.

AMENDMENT TO THE ORGANIC LAW ON NATIONAL ELECTIONS

The relevant sections are as follows:

"Organic Law on National Elections (Amendment No 1) Law ...

Section 11 Requisites for nomination (Amendment of s 86)

Section 86(c) of the Organic Law on National Election is amended by repealing the letter and figures "K100 and replacing them with the following:

"K,1000".

Section 12 Repeal and replacement of Section 89

Section 89 of the Organic Law on National Elections is repealed and is replaced with the following:

"89     Deposit to be forfeited in certain cases

The deposit made by or on behalf of a candidate at an election shall be retained pending the election, and after the election shall be returned to the candidate, or to some person authorised by him in writing to receive it, if he is elected, and otherwise it is forfeited to Papua New Guinea."

The Constitution refers to a "fee" of K1,000 and the Organic Law makes reference to a "deposit" but we do not think anything turns on the difference in the wording for the purposes of this question.

The conduct of Parliamentary elections is provided for by the Organic Law on National Elections, made pursuant to the general authority in the Constitution, s 126(1). It implements ss 125, 126 of the Constitution and s 126(3) directs that the system of election shall be in accordance with the Constitution, s 50.

"Organic Laws are special laws, dealing with particularly important subjects. They spell out the detail of certain matters outlined in the Constitution, so that the Constitution is kept from becoming too over-burdened with detail". (Per Kearney Dep CJ in SC Reference No 2 of 1982 (supra))

The Organic Law provides the machinery for the election process. Insofar as it implements the Constitution it is regulatory in nature. Both ss 86 and 89 regulate the special right of citizens to stand for elective public office provided for by the Constitution, s 50. By s 50(2) of the Constitution those rights may only be regulated by a law that is reasonably justifiable for the purposes in a democratic society that has a proper regard for the rights and dignity of mankind. It should be noted that both ss 86 and 89 of the Organic Law take effect as an Act of the Parliament. This follows from s 1(1) of the Organic Law even though they are Constitutional Laws and it means that they are consistent with the Constitution s 50(2) which allows the rights in s 50(1) to be regulated by "a law".

TURNING FIRST TO THE EFFECT OF THE AMENDED S 86 OF THE ORGANIC LAW

This clearly gives effect to s 103 of the Constitution itself, which now requires a nomination fee of K1,000. Because s 103 is an express limitation on s 50 of the Constitution it cannot be argued that the amended s 86 of the Organic Law is inconsistent with s 50(1) of the Constitution. If it could be argued that s 50 of the Constitution has been altered then it has been altered by Constitution s 103 and not by the Organic Law. The Organic Law does not prohibit or deny a citizen the right to stand for Parliament, it merely regulates the exercise of that right in accordance with ss 50(1) and 103(3) of the Constitution as read together.

As the Constitution itself now requires a K1,000 fee then the Organic Law is not inconsistent.

THE EFFECT OF THE AMENDED SECTION 89 OF THE ORGANIC LAW ON NATIONAL ELECTIONS

Previously s 89 of the Organic Law provided that a deposit was forfeited (that is, of the old amount of K100) if the total number of votes of a candidate was less than ten per cent of the total votes polled by the successful candidate. The amended section now means that an unsuccessful candidate forfeits his deposit of K1,000.

Unlike the requirement to pay a deposit of K1,000, this provision for forfeiture has not been introduced by an amendment to the Constitution but solely by s 89 of the Organic Law and it takes effect as an ordinary Act of Parliament. It is subject to s 50(1) of the Constitution, namely that every citizen has the right and shall be given a reasonable opportunity to vote for and to be elected to elective public office at genuine, periodic, free elections and that by s 50(2) of the Constitution, these rights can only be regulated in effect by s 89 of the Organic Law if it is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind. The regulating law must not prohibit the exercise of the rights whether in law or in effect (Constitution Sch 1.20). Section 50(1) affirms that any eligible citizen may hold elective public office and that every citizen must be "given a reasonable opportunity" to secure such office through the electoral process.

A large amount of statistical material (in particular concerning Papua New Guinea's per capita national income and the low proportion of eligible citizens having a regular cash income) has been tendered in evidence.

There is affidavit evidence from the National Statistician of Papua New Guinea and from the Director of the National Research Institute. We consider that this material is relevant and is properly before the court and that it should be given weight. We would adopt the same approach as this Court adopted when considering the legitimacy of the K1,000 deposit in 1982 when reliance was placed on Commonwealth Freighters Pty Ltd v Sneddon [1959] HCA 11; (1959) 102 CLR 280 at 292:

"... if a criterion of constitutional validity consists in matter of fact, the fact must be ascertained by the court as best it can, when the court is called upon to pronounce validity."

We think it is a fair summary of that material to say that the economic position especially in relation to per capita national income remains much as it was in 1982. It shows that:

47 per cent of the population eligible to stand for Parliament was wholly or mainly engaged in subsistence agriculture;

Only 21 per cent of citizens between fifteen and sixty-four years had a regular cash income;

The average per capita income of all persons (including expatriates) was around K650.

Given this statistical material, is a law (which requires forfeiture of a deposit of K1,000 for any failed candidate) "reasonably justifiable" for the purpose of regulating the exercise of the right to stand for Parliament and to be elected to elective public office "in a democratic society that has a proper regard for the rights and dignity of mankind"?

In answering this question, we would adopt the same approach as this Court did in 1982 when considering the same question in relation to the required deposit of K1,000. Firstly, it is relevant to consider the CPC Report, viz:

"We have given careful consideration to the question of what deposit should be paid by candidates in respect of their nominations for election to the Parliament. We agree that a reasonable deposit be paid to help ensure that the Act of nominating is regarded with appropriate seriousness. However, we believe that the deposit should not be set at a figure so high that it is likely to exclude a great many people because they cannot afford the sum involved." (CPC Report, p 6117, par 114).

Of course, we are here considering the question of forfeiture and not the reasonableness of the deposit of K1,000, although they are related. In our judgment, the sum of K1,000 deposit is a very high one in a democratic society, given the circumstances of the country as outlined, even where it may be said that a communal life means that individuals will be supported and be able to obtain this amount. It would certainly have the effect of ensuring that the act of nominating is regarded with appropriate seriousness. But for what reason should it be forfeited if a candidate remains unelected?

In our judgment, it is not "reasonably justifiable" for the purpose of regulating the right to a reasonable opportunity to be elected to elective public office. The current position of forfeiture where less than 10 per cent of the votes of the successful candidate is obtained would clearly be regulatory and given the amount now involved would mean that any candidate would be appropriately serious. The Constitution is permeated by an underlying principle of free and equal participation by its citizens (see SC Reference No 2 of 1982 (supra) at p 230 and at p 231:

"It is the duty of this Court meanwhile to enforce the values in the Constitution as expressing, in terms of the Constitution, s 50(2), the `proper regard for the rights and dignity of individuals' of this country".

We can find no valid reason in the light of these directives in the Constitution for finding that a forfeiture of a deposit of K1,000 would be reasonably justifiable.

We would answer Question 1 as follows:

In relation to s 11 of the Organic Law on National Elections (Amendment No 1) Law - No.

In relation to s 12 of the Organic Law on National Elections (Amendment No 1) Law - Yes.

QUESTION 2

"If the answer to Question 1 is "yes", are ss 11, 12 of the Organic Law on National Elections (Amendment No 1) Law 1991 invalid and ineffective notwithstanding the subsequent alteration of s 103(2) of the Constitution by s 1 of the Constitutional Amendment No 15 - Elections, which requires candidates to pay a nomination fee of K1,000?"

This question refers to the "subsequent" alteration of the Constitution and it was submitted that the second vote in support of the Organic Law was taken on 6 November 1991 which was six days before the second vote was taken on Constitutional Amendment No 15. Thus it was said that at the time the Parliament made the alteration to the Organic Law the Constitution had not been altered so that on the date that the Parliament made the Organic Law (6 November 1991) the Constitutional requirement as to K1,000 nomination did not exist. Accordingly, it was argued that ss 11, 12 of the Organic Law on National Elections (Amendment No 1) Law were immediately and irrevocably invalid and ineffective.

However, both amending laws were certified by the Speaker on 23 December 1991 and it is not to the point when they were actually voted upon by the Parliament as ss 110, 14(4), 14(5) of the Constitution require the amendments to be certified by the Speaker. Both amending laws express themselves to commence upon a date fixed in the Gazette upon advice and both were published in the Gazette on 11 February 1992 and commenced on 11 February 1992. Both laws commenced at the same moment in time.

We would answer Question 2 - No.

QUESTION 3

"Have ss 11, 12 of the Organic Law on National Elections (Amendment No 1) Law 1991 affected the operation of or altered s 50(1)(d) of the Constitution?"

This question has already been answered in Question 1. To the extent that alteration includes modify or add to the words or effect of the provision (Constitution Sch 1.2.(1)), then s 50 of the Constitution is altered by the limitation imposed by s 103 of the Constitution itself and s 11 of the Organic Law is consistent with that alteration. Section 11 of the Organic Law on National Elections (Amendment No 1) Law 1991 has not altered the Constitution.

Section 12 of the Organic Law does affect the operation of s 50(1)(d) for the reasons given in the answer to Question 1.

We would answer Question 3 in the same way as Question 1.

QUESTION 4

"If the answer to Question 3 is "yes", are ss 11, 12 of the Organic Law on National Elections (Amendment No 1) Law 1991 invalid and ineffective because they have not been supported by a three-quarters absolute majority of votes in accordance with ss 13, 14(1), 14(2), 16(1), 17(1) and 17(3) of the Constitution?"

The amendment to the Organic Law under s 14 of the Constitution required a two-thirds absolute majority under s 17(1) of the Constitution. This requirement has been complied with. In addition, because ss 11, 12 of the Organic Law amended ss 86 and 89 of that law they required only a simple majority because they take effect as an Act of Parliament (see SC Reference No 2 of 1982 (supra) at 222-224).

We would answer Question 4 - No.

QUESTION 5

"Are ss 11, 12 of the Organic Law on National Elections (Amendment No 1) Law 1991 invalid and ineffective because they are laws which discriminate against some citizens on the basis of wealth, by effectively denying them the right to stand for election to the Parliament, contrary to s 55(1) of the Constitution?"

The requirement of a K1,000 deposit may be arbitrary but it is not discriminatory. It applies to all. Furthermore, s 55(1) of the Constitution provides that "subject to this Constitution" all citizens have equal rights so that it must be interpreted subject to s 103(2), the same as s 50(1) is subject to s 103. The Organic Law repeats the requirements under s 103 of the Constitution for qualification for membership of Parliament and is not unconstitutional. It does not take away the right of all citizens to stand for elected office. It merely regulates that right.

Section 12 of the Organic Law has already been found unconstitutional for other reasons and it is not necessary to consider further the question of whether it infringes s 55 of the Constitution.

In relation to s 11 of the Organic Law on National Elections (Amendment No 1) Law 1991, we would answer Question 5 - No.

QUESTION 6

"Are ss 11, 12 of the Organic Law on National Elections (Amendment No 1) Law 1991 invalid and ineffective because they are laws which discriminate against women citizens, by reasons of the particular difficulties that are likely to be encountered by those citizens in raising a deposit of K1,000 contrary to s 55(1) of the Constitution"?

This question raises the same argument as in Question 5 and we would answer Question 6 in the same way - No.

QUESTION 7

"If the answer to any of Questions 2, 4, 5 or 6 is "yes", is the requirement in s 103(2) of the Constitution as altered by s 1 of the Constitutional Amendment No 15 - Elections, that a nomination fee of K1,000 be paid, of no practical effect because s 103(2) is not a self-executing provision?"

Section 11(2) of the Constitution read as follows:

"The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit."

To ascertain whether a provision of the Constitution is self-executing, the plain meaning of the words used and the nature and subject-matter of the provision have to be examined. Section 103(2) of the Constitution is more than a general principle for it sets out express requirements for qualification as a member of the National Parliament and now includes the requirement that a candidate pay a fee of K1,000. It is in our opinion not self-executing when taken in isolation in that it is not a machinery section although it is of practical effect because it limits the rights under s 50 of the Constitution and removes any doubts that may have existed as to the consistency of the Organic Law. Because s 103(2) as amended is not self-executing it appears that for that reason amendments were made to s 86 of the Organic Law. This is in accordance with s 126 of the Constitution which is the general authority requiring that elections shall be conducted in accordance with an Organic Law. As the Organic Law is fully authorised by the Constitution it takes effect as the machinery or regulatory law requiring a deposit of K1,000. By s 11(2) of the Constitution, the Constitution and the Organic Law should be given their fullest effect as to their being self-executing and for that reason they clearly are of practical effect.

We would answer Question 7 - No.

QUESTION 8

"When the Parliament makes a law which alters the Constitution and which affects the exercise of the rights conferred by s 50(1) of the Constitution does that law have to comply with s 50(2) of the Constitution?"

This question is in general terms and should be confined in our opinion to the particular amendment to the Constitution with which we are now dealing, namely, the amendment to s 103(2). The question should therefore be whether the amendment to s 103(2) of the Constitution has to comply with s 50(2) of the Constitution?

Parliament has amended the Constitution so as to expressly limit the rights conferred by s 50(1). The Constitution is amended by the procedures in ss 14 and 17. Section 14 is a detailed procedural provision and ss 14 and 17 in part entrench the Constitution. Section 14 does not provide that any amendment to the Constitution must be reasonably justifiable in a democratic society in the context and circumstances that that expression is used in s 50(2) of the Constitution. Provided the Constitutional Amendment to s 103(2) complies with ss 14 and 17 then it is a valid amendment.

Section 50(2) does not refer to a Constitutional Law; it merely refers to "a law". Thus, if s 50(2) provides that a law may regulate the rights in s 50(1) and those rights are expressly limited by s 103(2) of the Constitution, it cannot be said that s 103(2) of the Constitution must comply with a law as introduced by s 50(2). This would have the effect of making the Constitution subject to `a law'.

Section 50(2) provides that s 50 rights may be regulated by a law reasonably justifiable in a democratic society but that must be in addition to the "express limitations of this Constitution". Otherwise, the opening phrases of s 50(1) are superfluous and meaningless.

The rights in s 50(1) have now been expressly limited by a valid amendment to s 103(2) of the Constitution. Those rights may be regulated by a law due to s 50(2) of the Constitution. Section 103(2) of the Constitution does not have to comply with the regulatory process but vice versa.

Because Question 8 is too wide in it terms, we would decline to answer it.

QUESTION 9

"If the answer to Question 8 is "yes", is s 1 of Constitutional Amendment No 15 - Elections invalid and ineffective, because it is a law which does not regulate rights or which is not reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind?"

This question is answered in effect by the answer to Question 1 but as Question 8 has not been answered, we would not answer Question 9.

QUESTION 10

"Is a requirement that a candidate for election to the Parliament pay a nomination fee of K1,000 a "limitation" of the rights of citizens under s 50(1) of the Constitution?"

This question has already been answered in Question 1. We would answer Question 10 - Yes.

QUESTION 11

"If the answer to Question 10 is "yes":

N2>(a)      Is s 1 of Constitutional Amendment No 15 - Elections invalid and ineffective, because it does not expressly state that it is a law which limits the exercise of the rights conferred by s 50(1)(d) on the Constitution?

N2>(b)      Is the requirement in s 103(2) of the Constitution, as altered by s 1 of Constitutional Amendment No 15 - Elections, that a fee of K1,000 be paid, of no practical effect, because s 103(2) does not expressly state that it is imposing a limitation on the rights of citizens under s 50(1)(d) of the Constitution?"

It was submitted that a law altering the Constitution so as to impose a limitation on the rights of citizens under s 50(1) must expressly state that it is imposing such a limitation and this was due to the combined effect of s 103(1) of the Constitution and the introductory words of s 50(1) which state that the rights in s 50(1) can only be subject to the express limitations imposed by the Constitution itself. However, the Constitutional Amendment does state that it is a law to alter the Constitution. The making of alterations to the Constitution is provided for by ss 14 and 17 of the Constitution and for the reasons given in the answer to Question 8 this was validly done.

There was also a submission that there was failure to comply with the requirements of s 38(1) of the Constitution and more particularly s 38(2), namely that a law must specify the right or freedom that it regulates or restricts. But the procedural requirements of s 38(2) apply to those qualified rights contained in ss 43, 44, 45, 46, 47, 48 and 49. The rights contained in s 50 are not those qualified rights but are the special rights of citizens. An ordinary law which seeks to regulate the rights contained in s 50 must comply with s 50(2).

For the reasons set out in the answer to Question 8, it is not necessary for s 103 of the Constitution to comply with either s 50(2) or s 38(2).

We would answer Question 11 - No.

QUESTION 12

"If the proposed law to alter the Constitution is published by the Speaker in the National Gazette and that proposed law is subsequently amended, does that new proposed law, as amended have to be published in full in the National Gazette before that new proposed law, as amended, is debated and voted upon?"

The affidavit of Mr Ano Pala, the former Acting Clerk of National Parliament, deposes to the procedural events and the passage of the amending legislation through Parliament.

On 9 May 1991, a proposed law entitled Constitutional Amendment (Elections) was published in the National Gazette in accordance with s 14(2) of the Constitution. Section 14 sets out the procedures to be followed in amending the Constitution. The procedures begin in s 14(2) with the publication of the proposed law in the Gazette and conclude with the Speaker issuing a certificate under s 14(4) and (5). Section 14(3) provides that amendments to a proposed law to amend the Constitution shall not be moved "unless they have been circulated to Members of Parliament". There is no requirement in s 14 that the amendments to a proposed law be published in the Gazette.

We would agree with the submission of Mr Payne that it would appear that the requirement to advertise the original proposed law is to invite public discussion on the issue. As a result of that discussion, amendments may be made to the proposed law in the Parliament but the Constitution does not require any further publication other than the initial publication of the proposed law.

We would answer Question 12 - No.

QUESTION 13

"If the answer to Question 12 is "yes", is Constitutional Amendment No 15 - Elections invalid and ineffective, because it has never been published by the Speaker in full in the National Gazette, in accordance with s 14(2) of the Constitution?"

As the answer to Question 12 is "no", it is not necessary to answer this question.

QUESTION 14

"Is Constitutional Amendment No 15 - Elections, invalid and ineffective because the amendments to the proposed law to alter the Constitution (published in National Gazette No G45 of 9 May 1991) were not circulated to members of the Parliament before the end of the meeting at which Parliament first expressed its support for that alteration, as required by s 14(3) of the Constitution?"

This question may be non-justiciable due to s 134 of the Constitution which provides that whether or not the procedure of Parliament or its Committees have been complied with is non-justiciable and that the Speaker's Certificate as to the making of laws is conclusive as to the matters required to be set out in it. However, we are of the opinion that it is unnecessary to resolve the issue as it is apparent in any event from the affidavit of Mr Pala that the amendments were circulated to members and that there was opportunity for debate on the merits. This occurred at the July 1991 sittings.

The issue as to whether this is or is not non-justiciable has not been fully argued and in the circumstances where this question could have far-reaching effects beyond the importance of this reference and where the evidence is that in any event the correct procedures were complied with, we would decline to answer Question 14.

QUESTION 15

"When the Parliament alters the Constitution by requiring a candidate for election to the Parliament to pay a nomination fee of K1,000 is it providing for the imposition of taxation?"

Schedule 1.2(1) of the Constitution defines the term "taxation" to include "rates, charges and fees and imposts of any kind". Thus s 103(2) of the Constitution as amended when it refers to a fee of K1,000 is prima facie within the definition of taxation. However, the fee is refundable in certain circumstances (that is, to the winning candidate) and it is in effect held on trust by the Electoral Commission under s 86 of the Organic Law on National Elections until the counting of votes is concluded so that it is in reality a deposit.

In Mairi v Tololo & Ors [1976] PNGLR 125 at 130, Frost J said:

"Under the Constitution the imposition of taxation, an expression which includes, fees, requires the authorization of an Act of Parliament, Constitution s 209(1)".

Prentice Dep CJ and Williams J, at p 139:

"In a taxing Act one has to look at what is clearly said. There is no room for intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied, one can only look fairly at the language used."

Section 103(2) as amended does not provide the mechanics of how any fee is to be paid or to whom the fee is paid. The mechanics and procedure for the payment of the fee/deposit are contained in s 86 of the Organic Law on National Elections and this section takes effect as an Act of the Parliament. Accordingly, if any tax is imposed it is enforced under s 86 of the Organic Law and not under s 103(2) of the Constitution. Section 12(3) of the Constitution allows for an Organic Law to impose a tax.

There is a further matter and that is that the effect of the answer to Question 1 is that the provision for forfeiture introduced by the Organic Law amendment to s 89 has been struck down so that a deposit would be refundable in the same circumstances as before, namely, where a candidate obtained ten per cent of the votes of the successful candidate. This would strengthen the argument that the fee is in reality a deposit because it is by it nature refundable.

We would answer Question 15 - No.

QUESTION 16

If the answer to Question 15 is "yes":

N2>(a)      Is s 1 of Constitutional Amendment No 15 - Elections invalid and ineffective, by reason of the nomination fee of K1,000 not being regulated by an Act of the Parliament, as required by s 209(1) of the Constitution? and

N2>(b)      Is s 1 of the Constitutional Amendment No 15 - Elections invalid and ineffective, because there has been no recommendation to the Parliament by the Head of State to impose a nomination fee of K1,000 as required by s 210(1) of the Constitution?

Question 16 pre-supposes that Question 15 is answered as "Yes". Consequently it is not necessary to answer this question.

QUESTION 17

"When the Parliament alters the Organic Law on National Elections by increasing the amount of the deposit required by s 86 of that Organic Law to validate a nomination for election from K100 to K1,000 is it providing for the imposition of taxation?"

This question has been answered in Question 15. For the reasons there given, the K1,000 is a deposit.

We would answer Question 17 - No.

QUESTION 18

"If the answer to Question 17 is "yes", is s 11 of the Organic Law on National Elections (Amendment No 1) Law 1991 invalid and ineffective, because there has been no recommendation to the Parliament by the Head of State to comply with s 210(1) of the Constitution to increase the amount of the deposit required by s 86(c) of the Organic Law on National Elections?"

As the answer to Question 17 is "no", it is unnecessary to answer this question. However, the evidence shows that the Parliament did in fact obtain a recommendation from the Head of State under s 210 of the Constitution.

QUESTION 19

"Is Constitutional Amendment No 15 - Elections invalid and ineffective because the first occasion on which it was supported by the prescribed majority of votes was not during a meeting of the Parliament at which it was debated by the Parliament?"

Section 14(1),(2) and (3) of the Constitution refers to "opportunity for debate". There is no requirement in s 14 that actual debate take place. The evidence shows that there was "opportunity for debate" and that in fact it had been debated.

We would answer Question 19 - No.

Lawyer for the referring authority: The Ombudsman Commission, arguing the affirmative case: D Cannings

Lawyer for the Electoral Commissioner, arguing the negative case: Principal Legal Adviser

Lawyer for the National Parliament: Blake Dawson Waldron