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Supreme Court of Papua New Guinea |
[1982] PNGLR 214 - SCR No 2 of 1982 (No 1); Re the Organic Law on National Elections (Amendment) Act 1981
SC222
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SUPREME COURT REFERENCE NO. 2 OF 1982 IN THE MATTER OF THE CONSTITUTION OF PAPUA NEW GUINEA
AND IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS (AMENDMENT) ACT 1981
AND IN THE MATTER OF A SPECIAL REFERENCE BY THE OMBUDSMAN COMMISSION UNDER S. 19 OF THE CONSTITUTION
Waigani
Kidu CJ Kearney DCJ Greville Smith Andrew Kapi JJ
3-5 March 1982
5 April 1982
CONSTITUTIONAL LAW - Organic laws - Validity - Amendment of - Validity of amendment - Manner and form requirements - Constitution s. 12(3)[xxxvi]1, s. 14[xxxvii]2 - Organic Law on National Elections (Amendment) Act 1981.
N1>CONSTITUTIONAL LAW - Constitutional references - Evidence - Matters of common knowledge - Judicial notice of - Presentation of in open court.
N1>CONSTITUTIONAL LAW - Constitutional references - Onus of proof on.
N1>PRACTICE AND PROCEDURE - Onus of proof - Constitutional references on.
N1>PARLIAMENT - Elections - Validity of legislation regulating - Candidate for election required to deposit K1,000 - Denial of “reasonable opportunity” to stand for election - Not “reasonably justifiable” - Constitution, s. 50(1)[xxxviii]3 and (2)[xxxix]4.
N1>CONSTITUTIONAL LAW - Special rights of citizens - Right to vote and stand for election - Regulation of - Rights capable of restriction but not prohibition - Whether regulation “reasonably justifiable” - Standard of proof - Objective - Constitution, s. 50(1)[xl]5 and (2)[xli]6.
N1>STATUTES - Validity - Whether “reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind” - Standard of proof - Objective - Constitution s. 50(2)[xlii]7.
N1>STATUTES - Validity - Manner and form - Organic laws - Amendment Act - Validity of amendment - Organic Law on National Elections (Amendment) Act 1981 - Constitution, s. 12(3)[xliii]8, s. 14[xliv]9.
N1>STATUTES - Interpretation - “Subject to section (x)” - Words operative only where conflict - Constitution, s. 14(1)[xlv]10.
On a reference under s. 19 of the Constitution, as to the validity of an Act of Parliament.
Held
N1>(1) An Organic Law of the type mentioned in s. 12(3) of the Constitution may be amended by a simple majority vote; but in all other respects an amendment to such an Organic Law must conform to the constitutional requirements for amending Organic Laws contained in s. 14 of the Constitution.
N1>(2) The Organic Law on National Elections (Amendment) Act 1981 which was not made in the manner and form required by s. 14 of the Constitution, is accordingly, invalid.
N1>(3) In constitutional cases the Court may take judicial notice of matters of common knowledge. Materials relevant to the matters of which the Court is asked to take such notice should be presented in open court as part of the brief.
N1>(4) The Organic Law on National Elections (Amendment) Act 1981, by requiring a candidate for election to Parliament to validate his or her nomination with a deposit of K1,000 denies at this time to a majority of eligible citizens their “reasonable opportunity” to stand for election to Parliament, in terms of s. 50(1) of the Constitution.
N1>(5) The exercise of rights under s. 50(1) of the Constitution, may be restricted but cannot be prohibited by a regulating law under s. 50(2), which is “reasonably justifiable for the rights and dignity of mankind”.
N1>(6) In deciding whether legislation is “reasonably justifiable” under the Constitution, the test is objective, in terms of the reasonable man.
N1>(7) The Organic Law on National Elections (Amendment) Act 1981, by requiring a candidate for election to Parliament to validate his or her nomination with a deposit of K1,000 is not a law which is, at this time, “reasonably justifiable” in terms of s. 50(2) of the Constitution, in view of the manifest emphasis in the Constitution, on free and equal participation by citizens in the election process.
N1>(8) As to the onus of proof in a reference under s. 19 of the Constitution:
N2>(a) (Per Kidu C.J., Andrew J. agreeing) The question of onus of proof does not arise.
N2>(b) (Per Kearney Dep. C.J.) A referring authority alleging invalidity of an Act, in general, bears the onus of proof.
N2>(c) (Per Kapi J.) A party who alleges invalidity or unconstitutionality of an Act must show a prima facie case of infringement of his right; the party who relies on the validity or constitutionality of the law then bears the onus of proving that the law is within the limitations provided by the Constitution.
N1>(9) (Per Kidu C.J. and Kapi J.) The words “subject to sections 12 and 15(3)” when used in s. 14(1) of the Constitution merely subject the provisions of the subject sections to the provisions of the master section; where there is no conflict the phrase does nothing; if there is conflict, the phrase shows which is to prevail.
Michael Ayakamp v. Guringng B. [1981] P.N.G.L.R. 531 followed.
Cases Cited
A.-G. for Alberta v. A.G. for Canada [1939] A.C. 117.
A.-G. for Ontario v. A.-G. for the Dominion [1896] UKLawRpAC 27; [1896] A.C. 348.
Australian Communist Party v. Commonwealth [1951] HCA 5; (1951) 83 C.L.R. 1.
Boardman v. Duddington [1959] HCA 64; (1959) 104 C.L.R. 456.
Brajnandan Sharma v. The State of Bihar A.I.R. (37) 1950. Patna 322.
Breen v. Sneddon [1961] HCA 67; (1961) 106 C.L.R. 406.
Cheranci v. Cheranci (1960) N.R.N.L.R. 24.
Clark (C. & J.) Ltd. v. Inland Revenue Commissioners [1973] 2 All E.R. 513.
Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 C.L.R. 280.
Dr. Chike Oke v. D.P.P. (1961) Unreported F.S.C. 56 referred to in Nwabueze Constitutional Law of the Nigerian Republic, p. 396.
Ffrost v. Stevenson [1937] HCA 41; (1937) 58 C.L.R. 528.
Madras, The State of v. V. G. Row [1952] INSC 19; A.I.R. (1952) S.C. 196.
McCulloch v. Maryland [1819] USSC 5; (1819) 4 Wheat. 316; 4 L. Ed. 579.
Michael Ayakamp v. Guringng B. [1981] P.N.G.L.R. 531.
Muller v. Oregon [1908] USSC 53; (1908) 208 U.S. 412; 52 L. Ed. 551.
Saraswati Industrial Syndicate Ltd. v. Union of India A.I.R. (1972) Delhi 159.
Smith v. London Transport Executive [1951] A.C. 555.
S.C.R. No. 4 of 1980; Re petition of M. T. Somare (No. 2) [1982] P.N.G.L.R. 65.
S.C.R. No. 1 of 1982; Re Bouraga [1982] P.N.G.L.R. 178.
Uebergang v. Wheat Board [1980] HCA 40; (1980) 32 A.L.R. 1.
Uganda v. Commissioner of Prisons; Ex parte Matobu (1966) E.A.L.R. 514.
Zorach v. Clauson [1952] USSC 55; (1952) 343 U.S. 306; 96 L. Ed. 954.
Reference
This was a reference under s. 19 of the Constitution, by the Ombudsman Commission of three questions (see pp. 217-218 of reasons for judgment of Kidu C.J. hereunder) relating to the validity of the Organic Law on National Elections (Amendment) Act 1981. On 5th March, 1982, the Court held that the Act was invalid (see first judgment hereunder) and undertook to deliver full reasons later, (see p. 217).
Counsel
P. Donigi, to argue the affirmative case.
C. Maino-Aoae, (Principal Legal Adviser) intervening, to argue the negative case as amicus curiae.
Cur. adv. vult.
5 March 1982
KIDU CJ KEARNEY DCJ GREVILLE SMITH ANDREW KAPI JJ: The Ombudsman Commission seeks an advisory opinion from this Court under the provisions of the Constitution, s. 19(3), whether a certain law recently made by the National Parliament is valid under the Constitution.
The law in question is Act No. 46 of 1981; its short title is “Organic Law on National Elections (Amendment) Act 1981”. The National Parliament made this law on 24th November, 1981. The Act amends s. 86(c) of the Organic Law on National Elections. It has the effect that a candidate for election to the National Parliament must deposit K1,000. Previously the deposit required was K100.
The Ombudsman Commission has raised three questions, each one of which queries the validity of this Act for a different reason. We have heard argument from counsel for the Ombudsman Commission, the Principal Legal Adviser, and counsel for the National Parliament over the last three days.
One question queries whether the Act infringes the special right of citizens under the Constitution, s. 50, to stand for elective public office, by denying them a reasonable opportunity to stand. The second question queries whether the Act discriminates amongst citizens on the basis of wealth, amounts to denying them an equal right to stand for Parliament, and is therefore contrary to the Constitution, s. 55, which provides for all citizens to have the same rights. The arguments on these questions have been wide-ranging, require careful consideration, and cannot be resolved quickly.
The third question is whether the Act is invalid because it was not made in the manner and form which the Constitution requires. Here the argument has been much more confined, and the answer is, in the opinion of all the members of the court, very clear.
Quite simply s. 86(c) is a provision of an Organic Law. Whether or not s. 86(c) may be altered by a simple majority or only by a special majority, it must, like any Organic Law, be altered only by the special procedure laid down in the Constitution, s. 14. This procedure was not followed when the Parliament made Act No. 46 of 1981. It follows that Act No. 46 of 1981 is a nullity, and has no legal effect, because it was made in a manner not allowed by the Constitution.
The result of the court’s decision is that an intending candidate for election cannot be required to pay K1,000 as a deposit on nomination; he has to pay K100 as a deposit, as required by s. 86(c) of the Organic Law.
The court has taken the unusual step today of giving an opinion under the Constitution, s. 19(3), immediately, without detailed reasons, and without answering all the questions posed. That is for two reasons. First, the answer to the third question is sufficient to show that Act No. 46 of 1981 is invalid as unconstitutional. Second, the general election is to be held very soon, and it is clearly in the public interest that it be known at the earliest possible date that an intending candidate does not need to deposit K1,000.
The court will answer in due course with full reasons, all the questions posed.
KIDU CJ: The Ombudsman Commission, pursuant to s. 19 of the Constitution, asked this Court to give its opinion on three questions relating to the interpretation and/or application of certain provisions of the Constitution and the Organic Law on National Elections. These questions were:
N2>1. Is the Organic Law on National Elections (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 Elections (Amendment) Act of 1981, by requiring a candidate to validate his (her) nomination with a K1,000 deposit, impose an unreasonable restriction upon the right of ordinary citizens to 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 Elections (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 Organic Law).
The Organic Law on National Elections came into operation on 16th September, 1975. It was expressed to be a provisional Organic Law (s. 266 of the Constitution). Section 86 thereof provided, inter alia, as follows:
N2>86. REQUISITES FOR NOMINATION
No nomination is valid unless:
(a) the person nominated consents to act if elected, and declares that he is qualified under the laws of Papua New Guinea to be elected as a member; and
(b) the nomination paper, or the telegraphic notification referred to in s. 85(3), as the case may be, is received by the Returning Officer after the issue of the writ and before the hour of nomination; and
(c) at the time of the delivery of the nomination paper the person nominated or some person on his behalf deposits with the Returning Officer or other person to whom the nomination is made the sum of K100 in money or in a banker’s cheque.
This Organic Law states, inter alia, that s. 86 was “intended to take effect, as provided for by s. 12(3)(a) (Organic Laws) of the Constitution as an Act of the Parliament”. (See s. 1 of the Organic law.)
Section 12 of the Constitution says:
N2>12. ORGANIC LAWS
(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
(b) not inconsistent with this Constitution; and
(c) expressed to be an Organic Law.
(2) An Organic Law may be altered only by another Organic Law, or by an alteration to this Constitution.
(3) Nothing in this section prevents an Organic Law from:
(a) making any provision that might be made by an Act of the Parliament; or
(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.
On 5th March, 1982 the court gave its opinion on the first question (see p. 217 infra)—that was that the Organic Law on National Elections (Amendments) Act 1981 was invalid. We said:
“Quite simply s. 86(c) is a provision of an Organic Law. Whether or not s. 86(c) may be altered by a simple majority or only by a special majority, it must, like any Organic Law, be altered only by the special procedure laid down in the Constitution, s. 14. This procedure was not followed when the Parliament made Act No. 46 of 1981. It follows that Act No. 46 of 1981 is a nullity, and has no legal effect, because it was made in a manner not allowed by the Constitution.”
We said we would answer in due course with full reasons all the questions posed. This we do now.
The Organic Law on National Elections (Amendment) Act 1981 was passed by Parliament on 26th November, 1981, and it came into operation on 17th December, 1981. It purported to amend s. 86(c) of the Organic Law on National Elections by increasing the nomination deposit required of candidates for election to Parliament from K100 to K1,000.
There is no contention that this Act was passed on the voices and that it was dealt with as an ordinary Act of Parliament.
Mr. Donigi of counsel, for the Ombudsman Commission, submitted that Parliament had no power to legislate with respect to the subject matter in question (i.e. the requisites for nomination) by means of an ordinary Act of the Parliament. He submitted that what is provided for in s. 86 of the Organic Law is part of the “electoral system” and such can only operate as Organic Law and not an Act of the Parliament. This was, he submitted, the consequence of s. 126(7) of the Constitution which reads as follows:
An Organic Law shall make provision for and in respect of:
N2>(a) the appointment, constitution and procedures of the Electoral Commission, and for safeguarding its independence; and
N2>(b) the electoral system; and
N2>(c) safeguarding the integrity of elections; and
N2>(d) appeals to the National Court in electoral matters. (Emphasis mine.)
I do not think the point arises for consideration because of what I am about to say hereon.
Section 12(2) of the Constitution says in no uncertain terms that an Organic Law may only be altered by another Organic Law or an alteration to the Constitution.
Section 86(c) of the Organic Law on National Elections, whether it operates as an Act of the Parliament or a constitutional law, may only be altered by a constitutional law. Once a provision is contained in an Organic Law (a constitutional law) the only way to alter such a provision is categorically laid down by the Constitution, s. 12(2). The only concession allowed by the Constitution, s. 12(3), is that a provision contained in an Organic Law, that might be made by an Act of the Parliament, requires only the same majority required for any Act of Parliament. It does not say that the procedure laid down by the Constitution, s. 14, does not apply, though Mr. Maino submitted this was its effect.
The learned Principal Legal Adviser submitted that the Constitution, s. 14(1), supported his submission. It reads:
N2>“(1) Subject to sections 12(3) (Organic Laws) and 15 (urgent alterations), a proposed law to alter this Constitution, or a proposed Organic Law, must be supported on a division in accordance with the Standing Orders of the Parliament by the prescribed majority of votes determined in accordance with section 17 (“prescribed majority of votes”) expressed on at least two occasions after opportunity for debate on the merits.”
I cannot see how the use of the words “Subject to Sections 12(2) ...” renders the whole of s. 14 inapplicable to laws referred to in s. 12(3).
My brother Kapi has conveniently set out in Michael Ayakamp v. Guringng B. [1981] P.N.G.L.R. 531 at pp. 533, 534, some authorities on the meaning and effect of the words “subject to ...” in certain Acts: Smith v. London Transport Executive [1951] A.C. 555 and Clark (C. & J.) Ltd. v. Inland Revenue Commissioners [1973] 2 All E.R. 513.
In the first case Lord Simonds said at p. 569:
“The words ‘subject to the provisions of this Act’ ... are naturally words of restriction. They assume an authority immediately given and give a warning that elsewhere a limitation upon that authority will be found.”
Lord MacDermott, in the same case, at p. 577 said:
“That is an expression commonly used to avoid conflict between one part of an enactment and another, and I have difficulty in reading into it more than it says.”
In the second case Megarry J. said at p. 520:
“In my judgment, the phrase ‘subject to’ is a simple provision which merely subjects the provisions of the subject subsections to the provisions of the master subsections. Where there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision.”
As Kapi J. said in Michael Ayakamp (supra): “With respect, I would adopt the meaning given to the expression ‘subject to’ in the above cases.” Section 14(1) of the Constitution only subjects itself to s. 12(3) of the Constitution insofar as the latter provision provides that the majority required to alter a provision in an Organic Law, that might be provided for in an Act of Parliament, is that applicable for an Act of the Parliament. The Constitution, s. 12(3) does not do anything more. The result of this is that other requirements of the Constitution, s. 14 apply to such provisions.
As to Questions 2 and 3, I have read the opinion of Kearney Dep. C.J. and I concur with his Honour. I make the following observations, however, on the onus of proof in s. 19 references.
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 K1,000 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 another.
KEARNEY DCJ: Under the Constitution, s. 19, certain authorities may apply for the court’s opinion on the validity of a law. The Ombudsman Commission is one of those authorities. It has referred three questions to the court, each of which queries for a different reason the validity of an Act of the National Parliament called the Organic Law on National Elections (Amendment) Act 1981. That Act purported to amend s. 86(c) of the Organic Law on National Elections, so as to increase an election candidate’s deposit on nomination from K100 to K1,000.
One of the questions queries the validity of that Act, on the basis that it was not made in the manner and form required by the Constitution, s. 14. On 5th March, this Court expressed the opinion that the Act was invalid for that reason, indicated that full reasons for that opinion would be given later, and that the other questions referred would also be answered later (see p. 217 infra).
I now turn to these matters. I first set out full reasons for the answer on 5th March to the “manner and form” 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 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 organize and conduct elections, for electorates and redistributions, the enrolment of electors, nominations, polling and so on.
Part II of the Organic Law deals with the nomination of candidates. Amongst the requisites for a valid nomination is the payment of a deposit when nominating. That is provided for by s. 86(3) which until recently fixed the deposit at K100. Then a private Member’s Bill (now the Act in question) was introduced and passed through all stages one day in November; it purported to amend s. 86(c) by increasing the deposit tenfold, to K1,000.
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 overburdened with detail. The Constitution s. 12(2) provides:
“An Organic Law may be altered only by another Organic Law, or by an alteration to this Constitution.” (Emphasis mine.)
The Ombudsman Commission submits that the Constitution, s. 12(2), prohibits the amending of the Organic Law on National Elections, by an ordinary Act; and that the Act passed in November is accordingly unconstitutional. It is clear that where the Constitution prescribes that a specific legislative process be followed, Parliament lacks competence to legislate in some other way; that point is so clear that it was not in issue. The submission accurately states the clear effect of the Constitution, s. 12(2). How then could such an apparently cardinal error come to be made?
To understand, the Constitution, s. 12(3)(a) and s. 1(1) of the Organic Law must be juxtaposed. The Constitution, s. 12(3)(a) provides:
N2>“(3) Nothing in this section prevents an Organic Law from:
(a) making any provision that might be made by an Act of the Parliament; ...
but any such provision may be altered by the same majority that is required for any other Act of the Parliament.” (Emphasis mine.)
Section 1(1) of the Organic Law provides that several of the provisions of the Organic Law, including s. 86(c):
“... are intended to take effect, as provided for by s. 12(3)(a) of the Constitution as an Act of the Parliament.”
I think that the meaning of the Constitution, s. 12(3)(a), is crystal clear. The only possible lack of clarity arises from the use of the words “any other”; however, it seems clear enough that those words are equivalent here to “an”. The proviso in s. 12(3)(a) introduced by “but” deals only with the majority required to amend an Organic Law which provides of the Organic Law is I think properly categorized, in terms of the Constitution, s. 12(3)(a), as a “provision that might be made by an Act for something that could have been provided for by an Act. Section 86(c) of the Parliament”. This is because the effect of s. 86(c) is to regulate, in a particular way, the special right of eligible citizens to stand for elective public office; that special right is provided for in the Constitution, s. 50, and s. 50(2) allows that right to be regulated by a “law” (which term includes an ordinary Act) possessing certain special characteristics. (I note here that the question whether s. 86(c) as it stood before November 1981 met the requirements of the Constitution, s. 50(2), was not raised before us, and I proceed on the assumption that it did meet those requirements and was a valid regulation of the s. 50(1) right.) So the right regulated by s. 86(c) of the Organic Law could have been regulated by an ordinary Act, with the special characteristics mentioned in the Constitution, s. 50(2). However the Constitution, s. 12(3)(a), makes it clear that:
N2>(a) it is quite in order to regulate the Constitution, s. 50(1) right by an Organic Law; and that, if that course be adopted, as here,
N2>(b) such Organic Law (in this case, s. 86(c)) can be altered by a simple majority in the Parliament.
What the Constitution, s. 12(3)(a), does not do, or purport to do, is to change the nature of s. 86(c), which remains an Organic Law. Nor does s. 12(3)(a) affect or purport to affect, the impact of the Constitution, s. 12(2); so s. 86(c) can only be amended by an Organic Law. But because of the Constitution, s. 12(3)(a), s. 86(c) is an Organic Law which may be altered by an Organic Law carried by a simple majority vote.
It is true that it is difficult to “square” the literal wording of s. 1(1) of the Organic Law with what s. 12(3)(a) of the Constitution so plainly means. In reconciling them, I bear in mind that both the Constitution and the Organic Law on National Elections were passed by the same body, the Constituent Assembly. The task, however, is to make sense of the Organic Law in the light of the Constitution, and not vice versa.
Giving the words of s. 1(1) of the Organic Law their fair and liberal meaning, in the light of the clear meaning of the Constitution, s. 12(3)(a), I think that s. 1(1) should be construed as a signpost to Parliament and the court that the various sections and parts listed in s. 1(1) were considered by the Assembly to fall into the category of the special Organic Law provisions “that might be made by an Act”. In terms of the Constitution, s. 12(3)(a), they are Organic Laws which may be altered by a simple majority vote. Each such provision nevertheless takes effect as an Organic Law; see definition of “Constitutional Law” in the Constitution Sch. 1.2, and see also Sch. 1.3(3).
In every respect other than the size of the majority vote, an alteration to any of those provisions (Organic Laws) must be made in the manner provided by the Constitution, s. 14, for altering an Organic Law. Consistently with this, the Constitution, s. 14(1) and s. 17(5), which deal with the majority required to amend an Organic LaW, are expressed to be subject to s. 12(3); not so, the other subsections of those sections, nor is there any reason that they should, for they do not deal with what s. 12(3)(a) deals with i.e. the size of the majority. So, to amend s. 86(c), the simple majority permitted by the Constitution, s. 12(3)(a) is enough; but (subject to the urgency provisions of the Constitution, s. 15) all the other relevant constitutional requirements for a valid amendment to an Organic Law must be met. That is, to amend s. 86(c), the amending law:
N2>(1) must be, and be expressed to be, an Organic Law—ss. 12(2) and 12(1)(c);
N2>(2) must be published in full in the Gazette and circulated to all members one month before being introduced in Parliament—s. 14(2);
N2>(3) must then be debated during different meetings of the Parliament, separated by more than two months—s. 14(2);
N2>(4) must be supported (by a simple majority) on a division, not on the voices, on at least two occasions after being debated—s. 14(1);
N2>(5) must, when passed, bear the Speaker’s certificate that the matters mentioned have been complied with, including the detail—ss. 14(4) and 14(5).
I might add here that I consider that to amend s. 86(c), the amending law must also comply with the Constitution, s. 50(2).
In November 1981 Parliament did not approach the amending of s. 86(c) in this way. Apparently s. 1(1) of the Organic Law was read quite literally; s. 86(c) was treated as if it was an ordinary Act; and Parliament proceeded to amend s. 86(c) as if it were amending an ordinary Act. The failure to observe any of the five procedural requirements listed above means that what Parliament did in November 1981 was wholly inconsistent with those mandatory constitutional requirements. Such an inconsistency means that under the Constitution, s. 11(1), the Act passed in November 1981 is, in law, wholly invalid and ineffective.
I turn now to the second question referred by the Ombudsman Commission, which queries the validity of the Act on the basis that to require a candidate to lodge K1,000 as a deposit on nomination, unreasonably restricts his right as a citizen eligible to seek to be elected to Parliament. In short, the contention is that the Act is inconsistent with the Constitution, s. 50, the material parts of which are as follows:
N2>50. RIGHT TO ... 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, ... has the right and shall be given a reasonable opportunity:
...
(d) to ... be elected to elective public office ...
(2) The exercise of these 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 mine)
So far as concerns the right to stand for public office, 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. Both of these may be characterized as rights of each eligible citizen; the first is his primary right; the second is an adjectival right, designed to make effective his primary right.
As I understand the thrust of the Commission’s second question, it first focuses on s. 50(1) and queries whether the requirement denies the eligible citizen the “reasonable opportunity” which the Constitution requires he be “given” to secure a seat in Parliament through the electoral process. The question then focuses on s. 50(2) and as to that there are two submissions: first, that the requirement of a K1,000 deposit “restricts” the s. 50(1) rights, instead of “regulating” them; second, that to require a K1,000 deposit is not reasonably justifiable in a democratic society as a measure directed to the regulation of the exercise of the s. 50(1) rights.
I deal first with the first submission on s. 50(2), which distinguishes between “restricting” and “regulating”. Mr. Donigi submitted that s. 50(2) does not permit any restriction of the right to have a reasonable opportunity to stand for election; that is, that “regulation” does not extend to “restriction” and that the requirement of K1,000 deposit is a restriction. He relies on the distinction between “regulating” and “restricting” apparently drawn in the Constitution, ss. 44-49, 51 and 52.
I do not think that submission is valid. In the ordinary use of language, “regulate” does not include “prohibit”; see e.g. A.-G. for Ontario v. A.-G. for the Dominion [1896] UKLawRpAC 27; [1896] A.C. 348 at p. 363, per Lord Watson. And the Constitution, Sch. 1.20, makes it clear that a law passed under the Constitution, s. 50(2), cannot, under the guise of regulating, in law or in effect prohibit the exercise of the s. 50(1) rights. But I think that regulating the exercise of a right will very frequently involve the imposition of some degree of restriction on its exercise. A law passed for the purposes of any of ss. 44-49, 51 and 52 can I think, go further in the way of imposing restrictions than can a regulating law under s. 50(2). The difference between regulating and restricting is one of degree, not of kind, and I think the distinction is this: that the power to restrict in those provisions can extend to prohibition, while the power to regulate in s. 50(2) cannot.
Mr. Donigi’s submission on s. 50(1) is that a K1,000 nomination fee will deny in practice many eligible citizens their constitutional “reasonable opportunity” to stand for election, because they lack the financial means to pay such a sum. Implicit in his argument is that the court should set a standard for what is reasonable, followed by the assertion that a K1,000 fee does not meet that standard.
To establish that contention Mr. Donigi tendered in evidence a large amount of statistical material and the court heard testimony from the Director of the National Census, and from an officer from the Department of Labour and Industry, explaining calculations derived from this statistical material. Mr. Maino objected to the admission of all these materials; I deal first with that objection.
The question of the proof of facts, of information, which the court requires to determine the constitutional validity of legislation, is one of considerable importance. In a constitutional case the court must be satisfied of every fact the existence of which is necessary in law to provide a constitutional basis for the legislation. That is inherent in its duty of judicial review. These facts may be background facts, in the sense of information required by the court to judge the validity of the Acts—see Breen v. Sneddon, [1961] HCA 67; (1961) 106 C.L.R. 406 at p. 411, per Dixon C.J. They could often be proved only with difficulty. What kind of evidence of such facts may be allowed? These are reference proceedings and so facts the proof of which might otherwise have already been established by judicial findings upon evidence adduced in the course of litigation between parties, before it reached this Court, are lacking. Even in cases between parties, there may be issues of general fact, not peculiar to those parties, relevant to the effect of an Act such as this, and thus to its constitutionality; see Breen v. Sneddon (supra). Historically, constitutional courts in some other countries do not appear to have coped particularly well with the problem of ascertaining such constitutional facts.
In Australia the High Court appears to require that such facts be ascertained solely upon materials within judicial notice or proved by the parties according to the ordinary rules of evidence. See, for example, the refreshing of memory engaged in by the court in Ffrost v. Stevenson, [1937] HCA 41; (1937) 58 C.L.R. 528 at pp. 549, 578 et seq.; and cf. Uebergang v. Wheat Board, [1980] HCA 40; (1980) 32 A.L.R. 1. And see Mr. Brazil’s article “The ascertainment of facts in Australian constitutional cases” (1970-71) 4 F.L. Rev. 65, especially at pp. 77-78. This approach was also adopted by the Privy Council; see A.-G. for Alberta v. A.-G. for Canada, [1939] A.C. 117 at p. 130. See also Professor Lane’s article “Facts in Constitutional Law” (1963) 37 A.L.J. 108.
In the United States a broader approach is adopted to matters treated as being within the scope of judicial notice. See the case review at (1937) 82 L. Ed. 1244, especially at p. 1260. In other matters the parties may be required to introduce evidence. Other facts, outside the range of judicial notice may be the subject of judicial inquiry.
I consider that the statistical material tendered here is admissible, as dealing with matters of which judicial notice should be taken, for much the same reasons that prompted the United States Supreme Court to receive the materials in the “Brandeis brief”, in Muller v. Oregon, [1908] USSC 53; (1908) 208 U.S. 412; 52 L. Ed. 551. In that case, to establish that long hours of work were dangerous for women because of their physical characteristics and that they merited special treatment (and thus a State law enacted under the police power limiting the working day of women should not be struck down by the Fourteenth Amendment) Mr. Louis Brandeis submitted a voluminous brief involving over ninety reports of committees, bureaus of statistics and so on, and economic reports on the general benefits of short hours. The court accepted this material on the basis that it took “judicial cognizance of matters of general knowledge”; see p. 431. So, I think, should this Court in constitutional cases.
There is another reason why a broader approach in constitutional cases to matters of which judicial notice should be taken, should be adopted than e.g. in Australia. The Constitution entrusts to this Court in many instances the decision whether a certain Act is “reasonable”. In America and Australia, the reasonableness of an Act is for the legislature; once the end to be achieved is seen to be constitutionally legitimate, all means to achieve it which are not prohibited are constitutional. See e.g. McCulloch v. Maryland, [1819] USSC 5; (1819) 4 Wheat 316 at p. 321; [1819] USSC 5; 4 L. Ed. 579 at p. 605 and Australian Communist Party v. Commonwealth, [1951] HCA 5; (1951) 83 C.L.R. 1 at p. 149 per Latham C.J. That is not the case in our body politic. What is “reasonable” cannot be separated from questions of policy. In such a case the best this Court can do is to apply an objective test: “Would a reasonable man necessarily consider the Act unreasonable?” The personal views of the judges cannot be allowed to obtrude.
I should add that I think it very preferable that materials on which the court is asked to rely as going to matters of general knowledge, be presented in open court in the manner adopted in this case, rather than it being left perhaps to the individual judge’s private researches. See the article by Professor Nokes The Limits of Judicial Notice (1958) 74 L.Q.R. 59 from p. 68. It is particularly appropriate to the system of the written brief increasingly and beneficially adopted in constitutional argument before this Court.
The guiding approach to the reception of such materials should, I think, be along the lines expressed by Dixon C.J. in Commonwealth Freighters Pty. Ltd. v. Sneddon [1959] HCA 11; (1959) 102 C.L.R. 280 at p. 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.” (Emphasis mine.)
If evidence is relevant to that task it should be admitted, and the ways in which this is done should not be strictly limited. As Frankfurter J., dissenting, said in Zorach v. Clauson [1952] USSC 55; (1952) 343 U.S. 306 at p. 322; [1952] USSC 55; 96 L. Ed. 954 at p. 966:
“When constitutional issues turn on facts, it is a strange procedure indeed not to permit the facts to be established.”
I might briefly deal here with the question of the onus of proof. In general, the constitutional validity of an Act is assumed. It is questionable, I think, whether that assumption should be made, when the Act under constitutional attack depends, as here, for its validity upon some regulation or limitation of a constitutional right. Be that as it may, in reference proceedings it seems to me that the nature of those proceedings is such that the referring authority must in general bear the onus of proving the unconstitutionality it queries, for there is not necessarily any adverse party. It is open whether the nature of the regulating law in s. 50(2) is such that the onus of proof is as laid down in s. 38(3), when the issue is whether s. 50(2) is met.
I turn to the evidence, or rather to the conclusions which I consider are thereby established. The cogency of the statistical material is very high; there is, in fact, no possibility of its being disputed, it is beyond controversy. The statistics are comprehensive and suitable to the purpose at hand. That may be taken to be the minimal requirement for their admission cf. Boardman v. Duddington [1959] HCA 64; (1959) 104 C.L.R. 456 at pp. 458, 459, 471, and 474. They lead to the following four conclusions of fact:
N1>1. From the 1980 Census, 290,000 citizens male and female, aged 25 years and over (i.e. eligible to stand for election) were wholly engaged in subsistence agriculture. That represents 26 percent of that part of the population eligible to stand for Parliament.
I consider that the fact that such a substantial proportion of the citizens eligible to stand are not in receipt of a cash income, must cast some doubt on the suitability of any requirement involving candidates making a cash deposit. Of course, a requirement for a cash deposit is quite common throughout the democracies, although often enough the financially-poor candidate’s deposit can be waived or some alternative means of getting on to the ballot is permitted. In some bodies politic (where all eligible citizens would be in the cash economy) no cash deposit at all is required, and the frivolous would-be candidate is deterred by other means e.g. by a requirement that every candidate be nominated by 100 voters in his electorate to show minimal public support.
Undoubtedly, the effect of a substantial deposit is in one sense to make elections more manageable, by limiting the ballot only to “serious” candidates, and by strengthening the position of the well organized political parties. It is arguable that a more orderly election would result, voters would be less confused than perhaps they are by the sheer multiplicity of candidates, the opportunities for political manipulation would be reduced, and so the election result would more truly reflect the will of the majority.
As a matter of history, in all democracies in this century, there has been a clash between proponents of ballot simplicity, urging the reasons I have just mentioned, and proponents favouring as open an access to the ballot by candidates as possible. It is quite clear that the C.P.C. in effect favoured the latter approach, C.P.C. Report, p. 5/1/6, pars. 98 and 99. I will deal with this later on when dealing with the “reasonably justifiable in a democratic society” argument.
N1>2. Only 15.1 percent of citizens between 15 and 64 years had a regular cash income in 1979. In 1977, 71.4 percent of those earning a cash income in the private sector did not earn a gross income of more than K1,560 per year. The minimum wage is designed to represent the amount needed to maintain bodily dignity for a family consisting of a man, his wife and 1 child; in 1977 it stood at K28-08 per week in a level 1 urban centre; taking that as representing the cost of living, none of the 71.4 percent mentioned above had a discretionary income of more than K2 per week. Of course, these figures should only be looked at in the broad and account taken of wage and cost movements since. Account should also be taken on the other hand of the fact that the average citizen’s family has more than one child. But looking at it in the broad, it appears that rather less than three quarters of all eligible citizens employed in the private sector, would not, by their own savings from their earnings, be able to stand for election, if they had to find a deposit of K1,000.
N1>3. As to the public servants, it appears that a clerk class 5 officer earns more than do 80 percent of all other public servants. In 1981 a clerk class 5 was paid K80 per week. If he had three children, his discretionary income would be of the order of K3 per week. Even over five years he could not accumulate a K1,000 deposit from his own savings.
N1>4. The average per capita income of all persons in this country in 1980, was K504. As this includes expatriate incomes and company profits, the average per capita income of citizens must be considerably less.
The conclusion appears irresistible that a K1,000 deposit would either effectively prohibit all but a relative few of all eligible citizens from standing, or act as a substantial deterrent to their doing so, in so far as they rely on their own resources.
I do not consider that the court is required to determine, in terms of the structure of society and the levels and distribution of income as they are at present, what is a reasonable deposit on nomination. It is sufficient I think to say that on the material put before us, whatever sum may be a reasonable cash deposit today, a requirement of K1,000 is unreasonably high in that it would deny to a majority of eligible citizens the reasonable opportunity to stand for election given them by the Constitution s. 50(1). Accordingly, I would uphold the Commission’s submissions on this point.
I should add that considerable weight must be given to the views on matters of what is reasonable, to the people’s representatives in Parliament. I have therefore examined the Parliamentary debate on the November Act. It does not appear that there was any examination of the relevant issues in any depth by the Parliament which does not appear to have been favoured by the statistical information put before this Court. In these circumstances, the deliberations of Parliament are not of any assistance.
I turn next to the Commission’s second submission on the Constitution, s. 50(2), that a law requiring a K1,000 deposit is not “reasonably justifiable” for the purpose of regulating the exercise of the right to stand for Parliament, “in a democratic society that has a proper regard for the rights and dignity of mankind”. The “proper regard” which characterizes such a society is, I think, for present purposes to be found mainly by an examination of our own Constitution, though the other matters listed in s. 39(3) may also be regarded.
I accept the Commission’s submission that the Constitution is permeated by an underlying principle of free and equal participation by its citizens. See, for example, the first National Goal of “integral human development” especially par. (1); and the second National Goal of “equality and participation”, especially pars. (1), (2), (5), (8) and (9). These National Goals are a directive guide to all including this Court; see also the elaboration of this by the C.P.C., C.P.C. Report, p. 2/4, pars. 21 and 23; p. 1/3, par. 16; and p. 2/6.
It is relevant in this connexion to note that the C.P.C. specifically considered the question of the size of the nomination deposit, 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 should 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 merely because they cannot afford the sum involved.” C.P.C. Report, p. 617 par. 114.
The C.P.C. considered that at the time of its report (1974), the deposit should remain at K100.
The Commission argues that a K1,000 nomination fee, by tending to curtail rather than maximize the opportunity for political participation by eligible citizens, is not reasonably justifiable in a democratic society with the values I have indicated. On this question, it is not irrelevant also to bear in mind the approaches of other democracies whose constitutions and laws exhibit broadly similar values. Thus in New Zealand, the deposit is $100 (K57), set seven years ago; in Australia, it is $100 (K77); in New South Wales it was raised from $50 to $100, seven years ago; in the United Kingdom, it is £150. It is clear, bearing in mind the much higher average level of income in those democracies, that the deposit there required is of a fairly nominal order.
A third aspect which necessarily arises on this question, is the need to balance the nature and importance of the s. 50(1) right to stand, against the purpose for which the size of the deposit is imposed.
What arguments support the level of K1,000? I have mentioned the desirability of a manageable ballot and the benefits said to flow from that. They are possibly very considerable benefits indeed. It can also be argued that the large number of candidates contesting each seat which may be confidently expected on a relatively open access, impairs the right of a voter to cast his vote effectively, and thus undermines the whole basis of the democratic system; an argument can be put to the opposite effect that an exclusion of many potential (poorer) candidates, would weaken the effectiveness of a voter’s vote, since he may not then be able to find someone on the ballot paper whose policy he prefers. It is also arguable that the Commission’s approach to the problem, based upon an individual’s own capacity to find the deposit, is misdirected in that it fails to take account of “wantokism” in society, where an individual relies strongly in many aspects of life upon the support of his traditional group; or of the political party system.
A further question arises, but is unresolved because of a lack of evidence before this Court. To what extent, in practice, does a requirement of a K1,000 deposit deter anyone from standing? What other expenses must a candidate face? How much is spent by candidates on electioneering? What proportion would K1,000 represent of such a sum?
Whatever the weight to be given to these matters, it appears to me that it is heavily outweighed by the emphasis in the Constitution on the right and duty of citizens to take part in the political process which I have set out. I do not express that as a personal evaluation, but as an evaluation which is very manifest from the Constitution. If the values consciously favoured in the Constitution which this Court is directed to implement, create difficulties in practice, that can be remedied only by a reconsideration of these values and by constitutional amendment. 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.
It follows that I would uphold the Commission’s submission on this point. I do not think that the reasonable citizen would consider a law fixing the deposit at K1,000 as reasonably justifiable in this society today, in the light of the values expressed in the Constitution.
I turn to the third question referred by the Commission which queries the validity of the requirement of a K1,000 deposit, on the basis that it discriminates between citizens on the basis of wealth, and thereby denies them the equal right to stand for election, guaranteed by the Constitution, s. 55.
The Commission submits that it is apparent from the statistical material that per capita income—and thus ability to pay the deposit—is linked with “place of origin”, one of the qualities which cannot be used to base any distinction in rights. Whereas the average income in the North Solomons Province is over K2,000 per year, the average income in, for example, the Enga, Southern Highlands, West Sepik, Western and Gulf Provinces is less than K200 per year.
However, I do not think this submission is valid. Candidates stand for election in geographical constituencies within Provinces, and I see no scope for a “place of origin” argument based on differences between Provinces.
Another quality which is not permitted to found any difference in rights under the Constitution, s. 55(2), is “sex”. The statistical material shows that of eligible citizens employed in the private sector, for example, in 1977, only 4 percent were women. The Commission submits that in so far as the effect of the Act is to create an inequality of rights turning on sex, the law infringes the Constitution, s. 55(1). I agree that what cannot be done directly, cannot be done indirectly; but I am not satisfied that the court has obtained sufficient relevant information concerning women and their access to cash, and I would accordingly not accede to this submission.
Upon reflection, I do not consider that the application of the Constitution, s. 55, has been sufficiently argued before us to reach a safe conclusion on this submission; s. 55 is a particularly difficult and subtle area. As the Act in question is unconstitutional for other reasons, it is unnecessary to pursue further the question whether it infringes s. 55.
So far as concerns this reference, and bearing in mind that the real value of money in terms of nominal amounts changes quickly, and that the answer of the court is necessarily not valid for any time other than the present, I would answer the first two questions “Yes”; and the third question, “Unnecessary to answer”.
GREVILLE SMITH J: I have had the advantage of reading in draft the opinion of Kearney Dep. C.J. and concur in the answer he proposes, for the reasons he sets out.
ANDREW J: I have read the judgments of my brothers Kidu C.J. and Kearney Dep. C.J. I agree, and I have nothing to add. I would answer each of the three questions as their Honours would answer them.
KAPI J: Three questions were referred for the court’s decision. The reference was argued on 3rd, 4th and 5th of March 1982. Because of the urgency of the matter the court made a ruling on 5th March, 1982 that the Organic Law on National Elections (Amendment) Act 1981 was a nullity on the basis that it was made in a manner not allowed by the Constitution. This was the court’s answer to Question 1. We indicated that we would give detailed reasons for our decision on this question and answer the other two questions later. I now give my full reasons.
QUESTION 1
I have had the advantage of reading the draft reasons on this question by Kidu C.J. and Kearney Dep. C.J. and I agree with them. I have nothing further to add.
QUESTION 2
The issues raised by this question relate to the examination of:
N2>(a) the right to stand for elective public office and the extent of this right; and the nature of regulation of the right by a law under s. 50 of the Constitution; and
N2>(b) the nature of the regulation by the Organic Law on National Elections (Amendment) Act of 1981; and
N2>(c) whether the above law is “reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind”. (See s. 50(2) of the Constitution.)
The human rights provisions in the Constitution are divided into two broad categories. In Pt. 3, Div. 3, sub-div. D, the Constitution deals with the fundamental rights. In Pt. 3, Div. 3, sub-div. C, the Constitution deals with the qualified rights. This reference is concerned with the qualified rights. Under the qualified rights, the Constitution divides these rights into two groups, the rights of all persons and the special rights of citizens. The right guaranteed under s. 50 is a special right given to all citizens. Every citizen has this right except those persons who are excepted under s. 50(1)(a) and (b). Section 50 not only gives the right but gives an enabling provision so as to give the citizens “a reasonable opportunity” to meaningfully exercise that right. As far as elections are concerned, the expression “reasonable opportunity” covers many factors relating to elections which would enable citizens to meaningfully exercise that right. The laws passed by the State for elections should provide for such matters or factors which would give citizens a reasonable opportunity to exercise the right. This right is intended for the educated as well as the uneducated; and the rich and the poor. Laws which make provisions for elections must ensure that all citizens regardless of their status or income must be given the reasonable opportunity. This was the intention of the Constitutional Planning Committee, to give all citizens an opportunity to participate in all levels of government. (See C.P.C. Report, p. 5/1/13, par. 75.) Provisions have been enacted in the Organic Law on National Elections to give the uneducated opportunities or means meaningfully to exercise the right. (See for instance the provision of interpreters at polling booths—Pt. 15 of the Organic Law on National Elections.) See also special provisions for citizens who cannot read and write to use other means of marking the electoral paper— see s. 188 of Organic Law on National Elections. (See also C.P.C. Report, p. 5/1/13, par. 76.) It is clear from the provisions of s. 50 of the Constitution that citizens not only have the right to elective public office but there is a directive principle which directs the law making body to ensure that all citizens are given the opportunity meaningfully to exercise the right.
THE NATURE OF A LAW THAT MAY REGULATE THIS RIGHT
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):
N2>(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”;
N2>(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.
THE NATURE OF REGULATION BY ORGANIC LAW ON NATIONAL ELECTIONS (AMENDMENT) ACT 1981
Part 11 of the Organic Law on National Elections regulates the manner in which the right guaranteed under s. 50 may be exercised. Section 82 of the Organic Law requires that a citizen must be nominated in order to qualify for election. There are other sections which also deal with the mode of nominations. (See s. 84 and s. 85.) One of the requisites of nomination under s. 86(c), is a deposit of a sum of money. The requirement that a sum of money is to be deposited before the nomination by a candidate is valid, is a regulation of the exercise of the right to be elected to public office under s. 50 of the Constitution. That is to say, in principle, it does not take away the right but only sets down a condition before the right is exercised. It appears from the submissions of all counsel that they did not question the requirement by the section for a sum of money to be deposited.
It is also apparent from the submissions of all counsel that the original requirement of s. 86(c) of a deposit of K100 is not questioned as a law which is reasonably justifiable in a democratic society. However the amount which has been at issue between the parties is the amount in the amendment for a deposit of K1,000.
IS THE DEPOSIT OF K1,000 AS REQUIRED BY THIS AMENDMENT A LAW WHICH IS REASONABLY JUSTIFIABLE FOR THE PURPOSE IN A DEMOCRATIC SOCIETY?
What is “reasonably justifiable in a democratic society”? This phrase was borrowed from the pre-Independence Human Rights Ordinance 1971. I am not aware of any case in this jurisdiction which considered the meaning of this phrase.
It is clear from the Constitutional Planning Committee Report that this phrase was borrowed from the Constitutions of other Commonwealth Countries on Human Rights (See C.P.C. Report, p. 5/l/6, par. 27). The countries which have used this phrase or similar words are Zambia, Kenya, Nigeria, Uganda and Sierra Leone. Unfortunately, counsel did not refer the court to any relevant judicial decisions in these countries.
It is extremely difficult to give any proper interpretation of the phrase. The Constitution itself avoided any definition of it. The only assistance the Constitution can offer is s. 39(3) of the Constitution, which sets out some of the materials to which the court may have regard in deciding whether a law or thing is reasonably justifiable in a democratic society. Again, counsel did not take the court through all the materials under this provision.
Within the context of s. 50(2) of the Constitution the question which is posed by the use of this phrase is whether the regulation by the law which requires a deposit of K1,000 to qualify for nomination, having regard to the purpose for the deposit, has regard to the interest of all classes or groups of citizens in this country. It all boils down to the question of the reasonableness of the regulation of the exercise of the right by the law. What is the standard of the reasonableness to be applied? The courts in India have considered this question. The courts considered this in the context of Art. 19 of the Constitution of India. The Constitution of India used the words “reasonable restrictions”. In the case of The State of Madras v. V. G. Row [1952] INSC 19; A.I.R. (1952) S.C. 196 at p. 200 Patanjali Sastri C.J. said:
“It is important in this context to bear in mind the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned and no abstract standard, or general pattern, or reasonableness, can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable in all circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decisions should play an important part, and the limit to their interference to the legislative judgment in such cases can only be dictated by their sense of responsibility and self restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have in authorizing the imposition of the restrictions considered them to be reasonable.”
I would with respect adopt this passage to apply to the interpretation of what is reasonably justifiable in any given case. I note that this course has also been suggested by Donald Chalmers in an article entitled Human Rights and what is reasonably justifiable in a democratic society (1975) Melanesian Law Journal (Vol. 3, No. 1), p. 92. I find this approach is consistent with the approach given by the High Court of Uganda in Uganda v. Commissioner of Prisons; Ex parte Matobu (1966) E.A.L.R. p. 514. The court was concerned with the consideration of the terms of s. 30(5) of the Constitution of Uganda which is in the following terms:
N2>“30(5) Nothing contained in or under the authority of an Act of Parliament shall be held to be inconsistent with or in contravention of Articles 19, 24 or 29 of this Constitution to the extent that the Act authorized the taking during any period when Uganda is at war or any period when a declaration of state of public emergency under this Article is in force of measures that are reasonably justifiable for the purpose of dealing with the situation that exists during that period.” (Emphasis mine)
The court rejected a submission that it should apply an objective interpretation to the phrase “reasonably justifiable” but in my view accepted an interpretation which falls in line with the test of reasonableness by Sastri C.J. in India. At p. 543 of the (1966) East African Reports the court said the following:
“Such measures must be reasonably justifiable for the purposes of dealing with the situation which exists at any particular time and therefore whatever measures are adopted must depend upon how grave the situation is at any given time.” (Emphasis mine)
I also consider that the approach by the Nigerian cases would fall within the general test of reasonableness set out by Sastri C.J. In the Nigerian case of Cheranci v. Cheranci (1960) N.R.N.L.R. 24, the court was concerned with a consideration of whether the provisions of the Northern Region Children and Young Persons Law of 1958 was a law which was reasonably justifiable in a democratic society in the interest of public order, public defence, etc. Bate J. at p. 29 said:
“a restriction upon a fundamental human right must before it may be considered justifiable:
(a) be necessary in the interest in the public defence, public order, etc.; and
(b) must not be excessive or out of proportion to the object which it is sought to achieve.”
In another Nigerian case of Dr. Chike Obi v. D.P.P. (1961) Unreported F.S.C. 56, the court was concerned with the consideration of the provisions of the Criminal Code in relation to sedition. The Chief Justice Sir Adetokunbo Ademola said:
“it seems to me that ... it must be justifiable in a democratic society to take reasonable precautions to preserve public order and this may involve the prohibition of acts which if unchecked and unrestrained might lead to disorder even though those Acts would not themselves do so directly.” (Case is referred to by Nwabueze in Constitutional Law of the Nigerian Republic—p. 396.)
The subjective approach to the interpretation of what is reasonably justifiable is confirmed by the provisions of s. 39(1) of the Constitution.
EVIDENCE
On the question of evidence which is required for the purposes of determining the validity of a law such as the one in question, I agree with the general principles stated by Kearney Dep. C.J.
THE ONUS OF PROOF
Mr. Donigi submitted that the State has the onus of proof that a law passed by the Parliament is within the limitation provided by s. 50(2) of the Constitution. He submitted this by way of analogy from s. 38(3) of the Constitution. Mr. Maino on the other hand submitted that the onus of proving the unconstitutionality of an Act is on the party alleging that it is unconstitutional. He relied on the opinion of three judges in the Vanuatu case, S.C.R. No. 4 of 1980; Re Petition of M. T. Somare (No. 2) [1982] P.N.G.L.R. 65.
The right to stand for elective public office comes under the provisions which deal with qualified rights. Under these provisions, there are a number of ways a right may be qualified. A right may be regulated or restricted by a law that makes “reasonable provision”—see s. 44(a) and s. 47(a) of the Constitution. Or a law may regulate or restrict a right by imposing “reasonable restrictions”—see s. 46(1)(a) and s. 47(b) of the Constitution. Or a law may restrict a right which is “reasonably necessary”—see s. 53(5)(f). Or a law may regulate or restrict a right which complies with all the requirements of s. 38 of the Constitution.
Where a law is required to comply with the provisions of s. 38, it must comply with all the requirements set out under s. 38. One of the requirements under s. 38 of the Constitution and perhaps the most important one is that, where a law regulates or restricts or makes reasonable provisions etc., such laws are to be “to the extent that the law is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind”.
In my view it would be inconsistent with s. 38(3) of the Constitution to suggest a different onus of proof on the requirement “reasonably justifiable in a democratic society which has regard for the right and dignity of mankind” wherever it appears in the same sub-division. Whether the requirement of “reasonably justifiable in a democratic society” appears under s. 38 with other requirements or by itself as required under s. 50(2) of the Constitution, in my opinion, the onus would be the same. Wherever this phrase has been used in this sub-division, no provision on the question of onus is included. The answer in my view is quite simple; this is adequately covered under s. 38(3) of the Constitution. This construction makes sense because all these provisions appear under the same sub-division. In my view, this construction is in line with the intention of the Constitutional Planning Committee. When the Constitutional Planning Committee made its recommendations on the right to stand for election to public office, it recommended that this right may be subject to reasonable restrictions. By Recommendation 13, sub-s. 3, the Committee recommended:
“the burden of proving that a restriction referred to in Clause 1 above, is a reasonable restriction lies upon the person asserting that the restriction is reasonable.”
(See C.P.C. Report, p. 5/1/28 to p. 5/1/29, Recommendation 13.)
As I have explained before the question of onus does not appear under s. 50(2) of the Constitution because this is adequately dealt with under s. 38(3).
Our Constitution in this regard has made plain what has been a conflict of views by the Justices in India regarding the question of onus relating to the restrictions on the fundamental rights. It appears that our Constitution adopted the view held by Meredith C.J. in the consideration of the Indian Constitution in Brajnandan Sharma v. The State of Bihar A.I.R. (37) 1950 Patna 322. This view has been subsequently contradicted by later decisions in India. See S.I.S. Ltd. v Union of India A.I.R., (1972) Delhi 159. The view held by Meredith C.J., is endorsed by Dr. T. K. K. Iyer in his very informative book Judicial Review of Reasonableness in Constitutional Law at pp. 93 to 99. I endorse the reasons given for this view. The Nigerian courts like the latter Indian decisions have applied the presumption of constitutionality of an Act and require that the person who alleges unconstitutionality of a law has the onus of proof. This however has been questioned by Nwabueze in his book Constitutional Law of the Nigerian Republic at p. 311.
It would be sufficient for the party who alleges that a law is unconstitutional merely to prove that his right is infringed. He is only required to show a prima facie case. Where this is shown, then the onus is on the party who relies on the validity of the law to prove that it is within the limitation provided by the Constitution.
Turning now to the facts in this particular case, I find that the Ombudsman Commission has produced more than enough material to prove a prima facie case that the imposition of the K1,000 nomination fee breaches the right guaranteed to a class of citizens under s. 50 of the Constitution.
The onus is on the State to prove that the amendment Act is a law that is “reasonably justifiable for the purpose in a democratic society that has regard for the rights and dignity of mankind”. In this regard, absolutely no materials have been put up by the State or the Parliament for the imposition of K1,000. I am left with the impression that the imposition of K1,000 has no regard for the level of income by the citizens of this country.
It could not be said that there was any intelligent and careful consideration given to the levels of income of all citizens. The K1,000 nomination fee is excessive having regard to the facts in the statistical data. The nomination fee in question is contradictory to the principles stated in the National Goals and Directive Principles. (See Equality and Participation.) (See also C.P.C. Report, p. 5/1/13, par. 75, p. 5/1/16, par. 98 and 99.)
The Principal Legal Adviser arguing the validity of this Act has not discharged the onus of showing that this amendment is a law that is “reasonably justifiable for the purpose in a democratic society which has proper regard for the rights and dignity of mankind”. I would declare the law invalid for this reason.
Furthermore, to the extent that many citizens of this country would be unable to afford the nomination fee, this law could be said to be in effect prohibiting people of low income levels from exercising their right. This is beyond the power of regulation given by s. 50(2) of the Constitution. See also (Sch. 1:20 of the Constitution). This would be a second reason upon which I would declare the law invalid.
For the reasons given above the Organic Law on National Elections (Amendment) Act 1981 is invalid for not complying with the limitations set out under s. 50(2) of the Constitution.
I realize that the submissions on this question were broken up into two parts. The first part dealt with whether K1,000 fee nomination affected the reasonable opportunity of a citizen’s right to be elected to elective public office under s. 50(1) and the second part dealt with the question of whether the K1,000 amendment is reasonably justifiable in a democratic society that has proper regard of the rights and dignity of mankind (under s. 50(2) of the Constitution).
I have not approached this question in two parts. I consider that the right and the reasonable opportunity to exercise the right given under s. 50(1) are to be read together with s. 50(2). Reading both provisions together in this way, one comes to the conclusion that the reasonable opportunity to exercise the right given by s. 50(1) may be regulated by a law under s. 50(2). In other words the right under s. 50(1) cannot be read in isolation as though it is absolute in itself. It is subject to regulation by a law under s. 50(2). Where a law regulates the exercise of this right as in the K1,000 amendment, the only standard which this law must satisfy is that it is a law which is “reasonably justifiable for the purpose in a democratic society that has regard for the rights and dignity of mankind”. In addition, the law must not go outside the limitation, namely to regulate and do nothing more. Both of these issues are raised by s. 50(2) of the Constitution.
QUESTION 3
Section 55 of the Constitution guarantees the equality of all citizens. We are concerned here with the equality of the right to stand for elective public office. However, the equality of all citizens on this right is qualified by the introductory words of s. 55(1) “subject to this Constitution”. I discussed the meaning of the phrase “subject to” in the recent Bouraga Reference, S.C.R. No. 1 of 1982; Re Bouraga [1982] P.N.G.L.R. 178.
This means that where other provisions of the Constitution or laws permitted to be made by other provisions of the Constitution may be considered to be contradictory to the concept of equality of citizens, those provisions of the Constitution or laws permitted to be made by other provisions of the Constitution shall prevail.
On the particular right with which we are concerned, there is no Constitutional provision which may be said to be inconsistent with s. 55. In fact s. 50(1) gives every citizen equal right regardless of race, tribe, place of origin, political opinion, colour, creed or sex.
It is obvious that on the right to be elected to elective public office, s. 55 takes the right no further than is provided for in s. 50(1).
Section 55 of the Constitution is a general provision stating that all citizens have the same rights, privileges, obligations and duties. Whether it is permissible for a law to treat citizens differently regarding their rights, privileges, obligations and duties, is not dealt with by s. 55. These are matters which are dealt with by other provisions. Where other provisions of the Constitution deal with inequalities or the exercise of those rights, etc., which in effect provide for inequalities between the citizens then s. 55 must give way to those provisions. For example, see Rights and Privileges which may only be enjoyed by automatic citizens, s. 68(3). See also s. 68(4)(5)(6). As to regulation of the exercise of the right to be elected to elective public office, such law is permitted by s. 50(2). Whether or not such law is valid is to be determined only by the limitations set by the terms of s. 50(2). These are issues raised by Question 2 in the reference. I have already stated that the amendment in question is invalid under the terms of s. 50(2) for:
N2>(a) it is not a law that is reasonably justifiable for the purpose in a democratic society that has proper regard for the rights and dignity of mankind, and;
N2>(b) that it goes outside the limitation given by s. 50(2) and in effect prohibits or denies a class of citizens who are incapable of raising K1,000.
Section 55 does not take the matter further as all these issues are dealt with by s. 50(2) of the Constitution.
Question 1. As already answered on 5th March, 1982, “Yes”.
Question 2. “Yes”.
Question 3. “This question should not be answered”.
Solicitor for the referring authority, the Ombudsman Commission, arguing the affirmative case: P. Donigi.
The Principal Legal Adviser, intervening, arguing the negative case as amicus curiae: C. Maino-Aoae, Principal Legal Adviser, in person.
Solicitor for the National Parliament, intervening, as amicus curiae: A. Pala, Acting Parliamentary Counsel.
[xxxvi]Infra p. 218.
[xxxvii]Infra p. 220.
[xxxviii]Infra p. 224.
[xxxix]Infra p. 225.
[xl]Infra p. 224.
[xli]Infra p. 225.
[xlii]Infra p. 225.
[xliii]Infra p. 218.
[xliv]Infra p. 220.
[xlv]Infra p. 220.
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