Raz v Matane [1985] PGSC 18; [1985] PNGLR 329 (27 November 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 329 - SCR No 5 of 1985; Joseph Lemuel Raz v Paulius Matane, John Giheno, Anthony Bais, Francis Pusal and Bebes Korowaro 

[1985] PNGLR 329

SC305

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO 5 OF 1985

REFERENCE PURSUANT TO THE CONSTITUTION, S 18(2) CONCERNING THE JURISDICTION OF THE NATIONAL COURT IN RELATION TO MATTERS BROUGHT UNDER CONSTITUTION, S 41 JOSEPH LEMUEL RAZ

V

PAULIUS MATANE, JOHN GIHENO, ANTHONY BAIS, FRANCIS PUSAL AND BEBES KOROWARO

Waigani

Kidu CJ Kapi DCJ Amet J

23 September 1985

27 November 1985

CONSTITUTIONAL LAW - Basic rights - Enforceability - “Right or freedom” - Proscribed acts - Enforceability - Constitution, ss 23(2), 41, 57(1), 155(4).

CONSTITUTIONAL LAW - Proscribed acts - Not “basic right” - Not “right or freedom” under s 57(1) - Enforceability - Constitution, ss 23(2), 41, 57(1), 155(4).

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Interpretation and application of - Question relating to - When must be referred to Supreme Court - When National Court may determine - Constitution, s 18(2).

PRACTICE - Reference to supreme Court - Question of relating to interpretation or application of Constitution - When must be referred to Supreme Court - When National Court may determine - What is “question relating to ...” - Constitution, s 18(2).

The Constitution, s 41, which is in Div 3 of Pt III, provides:

“Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:

(a)      is harsh or oppressive ... is an unlawful act.”

The Constitution, s 57(1), provides:

“A right or freedom referred to in this Division [ie Pt III, Div 3] shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament....” 11

The Constitution, s 18, provides:

“Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional law....”

Held

N1>(1)      (Amet J dissenting) The Constitution, s 41, does not confer a “right or freedom” within the meaning of s 57(1) and is therefore not enforceable under s 57(1).

N1>(2)      (Amet J dissenting) The words “right or freedom” in the Constitution, s 57(1), are to be interpreted to mean the “rights” or “freedoms” that are guaranteed under the Constitution, Pt III, Div 3, and referred to as the human rights or basic rights.

N1>(3)      (Amet J not deciding) The Constitution, s 41, confers a right of action which may be enforced by the National Court under the Constitution, s 23(2) or s 155(4).

N1>(4)      (By Kapi Dep CJ) Under s 18 of the Constitution a question relating to the interpretation or application of a constitutional law arises when there is an issue as to the interpretation or application of a constitutional law.

N1>(5)      Where the Constitution or any constitutional law gives jurisdiction to the National Court to interpret or apply a constitutional law, and where a question relating to the interpretation or application of a constitutional law arises, the National Court is not bound to refer the question to the Supreme Court.

The State v Peter Painke (No 2) [1977] PNGLR 141 at 145; Re s 42 of the Constitution and Prai and Ondawame [1979] PNGLR 42, considered.

N1>(6)      Where the National Court has no jurisdiction to interpret or apply a constitutional law and a question relating to the interpretation or application of a constitutional law arises, the National Court is bound to refer the question to the Supreme Court.

N1>(7)      (Amet J not deciding) Accordingly, as the National Court has jurisdiction to interpret and apply the terms of s 41 of the Constitution under s 23(2) or s 155(4) of the Constitution, it is not bound to refer any question relating to the interpretation or application thereof to the Supreme Court.

Cases Cited

Avia Aihi v The State [1981] PNGLR 81.

Jammu and Kashmir, State of v Thakur Ganga Singh [1959] INSC 141; (1960) 2 SCR 346.

Premdas v Independent State of Papua New Guinea [1979] PNGLR 329.

S 42 of the Constitution and Prai and Ondawame, Re [1979] PNGLR 42.

SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314.

SCR No 2 of 1981; Re s 19(1)(f) of the Criminal Code [1982] PNGLR 150.

SCR No 3 of 1982; Re ss 57 and 155(4) of the Constitution [1982] PNGLR 405.

State, The v Peter Painke (No 2) [1977] PNGLR 141.

Reference

This was a reference pursuant to the Constitution, s 18(2), of the questions set out at the beginning of the reasons for judgment of Kidu CJ hereunder.

Counsel

T Griffiths, for the plaintiff.

A Tadabe, for the defendants.

Cur adv vult

27 November 1985

KIDU CJ: The questions this Court is required to answer are as follows:

N2>“1.      Does s 41 of the Constitution confer a right enforceable by the National Court under s 57 of the Constitution?

N2>2.       If the answer to Question 1 is in the negative, does the said s 41 confer a right which is enforceable by the National Court under any other provisions of the Constitution?

N2>3.       Does s 18 of the Constitution say that as soon as a court (other than the Supreme Court) or a tribunal begins to consider whether the provisions of a constitutional law means one thing or another or allows the court or tribunal to do or desist from doing anything that such a question must be referred to the Supreme Court?”

QUESTION 1

There is, in my opinion, no doubt that s 41 of the Constitution confers a right — the right to challenge an act done under a valid law. In SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314 the following was said by Kapi DCJ at 332-333 of the nature of this right:

“... A remedy under s 41 cannot be described as an enforcement of a right or freedom under s 57 of the Constitution, and therefore the National Court has no power to grant the remedy. It is a general remedy which is quite distinct and separate from enforcement of a right or freedom ...

Section 57 can have no application to the issue in question. Section 57 only applies to enforcement of rights or freedoms. As I have already pointed out, s 41 is a separate and distinct constitutional remedy.”

Bredmeyer J (at 344) said:

“Although s 41 is not one of the enumerated basic rights contained in the Constitution, but rather an adjunct to them, I consider that it is, nevertheless, a ‘right’ for the purposes of enforcement under s 57.”

Kapi DCJ’s view that s 41 provides for a constitutional remedy means, it seems to me, that s 41 confers a right of a sort and I agree with his Honour that this right is neither a right nor freedom mentioned in s 57 of the Constitution. This provision (that is s 57) states, inter alia, as follows:

N2>“(1)    A right or freedom referred to in this Division [that is Div 3, Pt III of the Constitution] shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament....”

I have, ever since the Constitution came into operation on 16 September 1975, always held the view that s 57 was included in the Constitution for the sole purpose of the enforcement of the human rights (we call them “Basic Rights”) entrenched therein. I still retain this view and in my opinion this is supported by the CPC Report. I bear in mind that not all recommendations in the CPC Report found their way into the Constitution nor did all of them get accepted fully, but with respect to the human rights (or rights and freedoms) and s 57 the CPC Report recommendations were included in the Constitution more or less word for word. These rights and freedoms are:

N2>1.       The right of life

N2>2.       The right to personal liberty

N2>3.       Freedom from forced labour

N2>4.       Freedom from inhuman treatment

N2>5.       Freedom for arbitrary search or entry

N2>6.       The right to protection of Law

N2>7.       Freedom of conscience, thought and religion

N2>8.       Freedom of expression and publication

N2>9.       Freedom of assembly and association

N2>10.     Freedom of employment

N2>11.     Freedom of movement

N2>12.     The right of privacy

N2>13.     The right to stand for election to public office and to vote

N2>14.     Freedom of information

N2>15.     Freedom from deprivation of property

There is absolutely no doubt that s 41 does not provide for a human right.

Section 57 was quite clearly meant to be used by the Supreme Court, the National Court and any other court designated by an Act of the Parliament to remedy breaches of human rights. That this is so is quite explicity stated in Ch V of the CPC Report. Pages 5/1/8 — 5/1/18 — 5/1/9 then explain the need for enforcement of these rights:

“On Balance, we have concluded that the human rights provisions should be enforced by the courts. We have recommended that not only the Supreme Court, but the National Court and District (or Provincial) courts should be able to decide such cases ...” [Emphasis added.] (Par 116, p 5/1/9m Ch V).

The actual recommendation of the CPC is at p 5/1/33:

“Enforcement of rights and freedoms

N2>17(1)  A right of freedom specified in this Part shall be protected and is enforceable in the Supreme Court, the National Court or a District (or Provincial court) on application by any person having an interest in the enforcement of that right or freedom....”

I would answer question 1 in the negative.

QUESTION 2

As I have already said s 41 provides a right. Whether it is remedial in nature or not is beside the point in answering question 2. I consider that the Constitution, s 23, empowers the National Court to deal with a matter brought under s 41. Section 23 provides as follows:

N2>“23     Sanctions

(1)      Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may:

(a)      impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10,000.00, or

(b)      in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,

or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.

(2)      Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.

(3)      Where the National Court considers it proper to do so, it may include in an order under Subsection (2) and anticipatory order under Subsection (1).”

It could be argued that s 23 confines itself to cases where an act is directly prohibited or restricted or a duty imposed. Section 41 creates a right but does not directly prohibit or restrict an act nor does it directly impose a duty. But in my view it does indirectly prohibit or restrict an act and also indirectly imposes a duty. A person empowered to do an act under a valid law is restricted or prohibited indirectly by s 41 from acting harshly or oppressively, etc. I see no real justification in construing s 23 to be applicable only in cases where a provision of a constitutional law directly prohibits or restricts an act. Giving s 23 a fair and liberal interpretation (see Constitution, Sch 1.5(2), it must apply to cases where a provision in a constitutional law indirectly restricts or prohibits an act. So the right conferred by s 41 may be enforced in the National Court under s 23(2).

Section 155(4) of the Constitution also enables the National Court to entertain an application under the Constitution, s 41. As s 41 provides for a right it is enforceable in the National Court under s 155(4): see Avia Aihi v The State [1981] PNGLR 81 and SCR No 2 of 1981; Re s 19(1)(f) of the Criminal Code [1982] PNGLR 150.

QUESTION 3

Section 18 of the Constitution provides as follows:

N2>“(1)    Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

N2>(2)      Subject to this Constitution, where any question relating to the interpretation or application of any provision of Constitutional Law arises in any court or tribunal other than the Supreme Court, the court or tribunal, shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.” [My emphasis.]

It must be emphasised that s 18 is to be read subject to the Constitution — that is, there are provisions in the Constitution which quite clearly vest the power to interpret or apply constitutional law in the National Court and other courts or tribunals. For instance ss 23, 57, 58 and 135 invest the National Court with the power to enforce guaranteed rights and freedoms, breaches of duty imposed by constitutional law and entertain questions relating to qualifications of a person to be or to remain a member of the Parliament or the validity of an election to the Parliament.

Therefore, in cases where these provisions are applicable the National Court does not have to refer any question of interpretation or application to the Supreme Court. Section 18 is quite clearly qualified by these provisions.

It is arguable that these provisions do not empower the National Court to interpret the relevant constitutional provisions. For instance s 57(1) is as follows:

N2>“57.    Enforcement of Guaranteed Rights and Freedoms

(1)      A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.”

It talks about protection and enforcement of rights and freedoms. So it may be open to argue that it confers no constitutional interpretation powers on the National Court but only enforcement powers. This would of course be the natural result of reading ss 23, 57, 58 and 135 restrictively. I will come to this later on.

It is to be noted that s 57 has its own referral provision. Subsection (4) thereof is in the following terms:

N2>“(4)    Any court, tribunal or authority may, on its own initiative or at the request of any person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).”

I consider that questions relating to interpretation or application of a provision in the Constitution relating to rights and freedoms should be referred under s 57(4) and not s 18(2). I say no more than this as the point was not argued in this reference.

I return to the question I deferred — that is, whether sections in the Constitution which qualify s 18(2) only confer enforcement powers in the National Court but not interpretation powers as well. In The State v Peter Painke (No 2) [1977] PNGLR 141 Frost CJ said (at 145):

“Whilst it is unnecessary to express any opinion on the first ground I should refer to the useful arguments raised by both counsel. If a breach of s 37(3) was proved, counsel for the accused sought an order pursuant to the Constitution, s 57(1) and (3) or s 22, enforcing the accused’s Constitutional right. Section 18(1) of the Constitution confers exclusive jurisdiction on the Supreme Court as to any question relating to the interpretation or application of any Constitutional law. But both counsel agreed that as that section is expressed to be subject to the Constitution, and as under ss 57(1) and 22 it was envisaged that such a question fell within the jurisdiction of both the National Court and the Supreme Court, there was no requirement to refer to the Supreme Court any question relating to the application and interpretation of s 37(3). I consider this view to be correct. It does not seem to me possible for the National Court to exercise its jurisdiction under s 57(1) and (3) to make an order which is necessary for the protection of a Constitutional right or freedom unless that Court both interprets and applies the relevant constitutional provision.”

Greville Smith J said the same thing in Re s 42 of the Constitution and Prai and Ondawame [1979] PNGLR 42 (at 45-46):

“On the question of whether I am bound by the provisions of s 18 to refer the matter to the Supreme Court I make mention of two judgments of persuasive authority. In The State v Kwambol Emgogol (Unreported, judgment N91, 7 April 1977 at 6). O’Meally AJ, said as follows:

‘Section 18(1) of the Constitution provides that the Supreme Court has original jurisdiction to the exclusion of other courts as to any question relating to the interpretation or application of any provision of a constitutional law. At first glance this provision would seem to require that whenever in any case in any court, other than the Supreme Court, a question arises which requires the application of any provision of the Constitution the matter must be referred to the Supreme Court. If that were the true position the provisions of sections, for example 22, 23, 39, 42 and 57 would be of no effect. However, s 23 with which we are presently concerned here expressly confers upon the National Court power to make Orders and I do not think the framers of the Constitution intended that when one of those provisions of the Constitution was to be applied it could only be done by Order of the Supreme Court. The Constitution itself authorises the National Court to apply certain of its provisions including those contained in s 23.’

In that case, his Honour excluded, in the exercise of his discretion, a record of interview on the ground that rights conferred by s 42 of the Constitution had been denied the accused. In The State v Peter Painke (No 2) ([1977] PNGLR 141 at 145) in respect of an application made under s 57 of the Constitution or alternatively under s 22 of the Constitution to discharge an accused on the ground that he had not been brought to trial within a reasonable time, contrary to s 37(3) of the Constitution, Frost CJ said, obiter:

‘Whilst it is unnecessary to express my opinion on the first ground I should refer to the useful arguments raised by both counsel. If a breach of s 37(3) was proved, counsel for the accused sought an order pursuant to the Constitution, s 57(1) and (3) or s 22, enforcing the accused’s constitutional right. Section 18(1) of the Constitution confers exclusive jurisdiction on the Supreme Court as to any question relating to the interpretation or application of any constitutional law. But both counsel agreed that as that section is expressed to be subject to the Constitution, and as under ss 57(1) and 22 it was envisaged that such a question fell within the jurisdiction of both the National Court and the Supreme Court, there was no requirement to refer to the Supreme Court any question relating to the application and interpretation of s 37(3). I consider this view to be correct. It does not seem to me possible for the National Court to exercise its jurisdiction under s 57(1) and (3) to make an order which is necessary for the protection of a constitutional right or freedom unless that Court both interprets and applies the relevant constitutional provision.’

I agree, with respect with the reasoning evident in the foregoing excerpts and, following the same line, I hold that I am not obliged by s 18 to refer the matter of these two complaints or either of them, to the Supreme Court and that I am authorised and indeed required by the imperative terms of s 42(5) as a Judge of the National Court to hear to conclusion and, subject to appeal, finally determine the matter of these two complaints. I would not, I think, be precluded from seeking the guidance of the Supreme Court under the provisions of s 5 of the Supreme Court Act 1975, on a matter of law only, but that is not what the complainants seek. I therefore refuse the application to refer these matters to the Supreme Court.”

I agree, with respect, with Frost CJ, Greville Smith J and O’Meally AJ.

But in respect of other provisions in the Constitution or organic laws there is no doubt that the National Court would have to refer a question of interpretation or application to the Supreme Court.

KAPI DCJ: A deportation order was made in respect of the plaintiff by the Minister for Foreign Affairs and Trade under the provisions of the Migration Act (Ch No 16). This order was reviewed by a committee of three Ministers which affirmed the order of the Minister.

The plaintiff sought a judicial review of this decision in the National Court. The principle ground relied on was the Constitution, s 41. This section has been held by the Supreme Court to be applicable to deportation orders made under the Migration Act: see Premdas v Independent State of Papua New Guinea [1979] PNGLR 329 (Premdas’ case).

The terms of s 41 do not indicate the Court in which the remedy may be sought. The question before the National Court was whether the Court has jurisdiction to interpret and apply the terms of s 41. Under the Constitution, s 18(1):

N2>“18(1) Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.”

The following questions have been referred for consideration by the Supreme Court:

N2>“1.      Does s 41 of the Constitution confer a right enforceable by the National Court under s 57 of the Constitution?

N2>2.       If the answer to Question 1 is in the negative, does the said s 41 confer a right which is enforceable by the National Court under any other provisions of the Constitution?

N2>3.       Does s 18 of the Constitution say that as soon as a court (other than the Supreme Court) or a tribunal begins to consider whether the provisions of a constitutional law means one thing or another or allows the court or tribunal to do or desist from doing anything that such a question must be referred to the Supreme Court?”

QUESTION 1

This question involves a close examination of the provisions of the Constitution, s 41 and s 57.

This issue came up for consideration in an indirect way in SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314. Hereafter, I will refer to this case as the Minimum Penalty case. Only two members of the Court found it necessary to decide the point. Bredmeyer J concluded that s 41 is a “right” for purposes of enforcement by the National Court under the Constitution, s 57. On the contrary, I concluded that s 41 does not confer a “right or freedom” within the meaning of those words in s 57.

I am not persuaded that s 41 confers a “right or freedom”. The provision deals with acts that are empowered to be done or are allowed to be done by a valid law. The provision sets out the circumstances, (s 41 (a), (b) or (c)), under which such acts may be held unlawful of invalid. The whole thrust of the provision is directed at these actions. It does not confer a “right or freedom” as for example “right” to privacy under s 49 or “freedom” of assembly and association under s 47.

However, any person aggrieved by acts which are prohibited by s 41 (a), (b) or (c), may seek judicial remedy in terms of the provision. That is to say, he has a cause or right of action upon which he may make an application to a court. McDermott J expressed this well when discussing s 41 in the Minimum Penalty case, (at 363):

“... As well there is the newer remedy in the form of a declaratory order available, provision for which is made in the National Court Rules. But, the difficulty has always been in getting a cause of action if you like to establish the basis on which to bring one of these actions. Access to courts has been fairly limited in this area. I consider s 41 wittingly or unwittingly remedies that — it supplies a right of action....”

Such a cause of action arises or is constituted at the time these actions are taken.

In this sense, a person has a right of action to come to the Court. This is quite a different thing from a “right or freedom” referred to in the Constitution, s 57.

MEANING OF “RIGHT OR FREEDOM” UNDER S 57(1)

The words “right or freedom” in s 57(1) are to be interpreted to mean the “rights” and “freedoms” that are guaranteed under Pt III, Div 3 of the Constitution.

This conclusion is inevitable when viewed in the light of the whole of Div 3. These words have been used consistently throughout this Division and must be interpreted as a whole: see the Constitution, Sch 1.5(1).

Section 33 provides:

N2>“33.    Other Rights and Freedoms, etc.

Nothing in this Division derogates the rights and freedoms of the individual under any other law and, in particular, an Organic Law or an Act of the Parliament may provide further guarantees of rights and freedoms and may further restrict the limitations that may be placed on, or on the exercise of, any right or freedom (including the limitations that may be imposed under Section 38 (general qualifications on qualified rights)). [Emphasis added.]

Section 38(1) provides:

N2>“38.    General Qualifications on Qualified Rights

(1)      For the purposes of this Subdivision, a law that complies with the requirements of this Section is a law that is made and certified in accordance with Subsection (2), and that:

(a)      regulates, or restricts the exercise of a right or freedom referred to in this Subdivision to the extent that the regulation or restriction is necessary....” [Emphasis added.] (See also s 38(2)(b)).

Under this provision, it is difficult to see what “right or freedom” that is conferred by s 41 may be regulated or restricted by a law. The point I wish to make is that the words “right or freedom” refers to the qualified rights and freedoms that are guaranteed in subdiv C — such as right to freedom of information under s 51 which may be regulated or restricted by a law that complies with s 38: (see s 51(2)).

It makes no sense to apply the terms of s 38 to s 41. This view is consistent with the view expressed by Saldhana J in Premdas’ case at 357:

“It is true that the Migration Act 1963, does not comply with the provisions of s 38 of the Constitution. But it would have to comply with s 38 only if any of the qualified rights mentioned in subdiv C had been regulated or restricted. The qualified rights have been detailed in subdiv C. I can find not a single right or freedom that has been regulated, restricted or in any way infringed either by the revocation of the entry permit or the threat of deportation, so called.”

It is obvious from this that his Honour considered s 41 not to confer a “right or freedom” within this subdivision, Wilson J agreed.

Section 57(5) provides,

N2>“57.    Enforcement of Guaranteed Rights and Freedoms

...

(5)      Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.”

The same words are used in s 58 and they are to be given the same meaning. In essence, the words “rights or freedoms” relate to rights or freedoms guaranteed by ss 35-37, 42-53 and 55.

RELATIONSHIP BETWEEN S 41 AND “RIGHTS OR FREEDOMS”

It is obvious from what I have said so far that s 41 can not be said to confer a “right or freedom” as guaranteed in the above provisions but can be said to provide the basis for a cause or right of action to bring judicial proceedings.

As I have attempted to point out in the Minimum Penalty case, infringement of a “right or freedom” is quite distinct from an action which may be declared unlawful or invalid under s 41. This distinction is born out by the Constitution, s 58. An infringement of a “right or freedom” gives rise to a claim for reasonable damages under s 58(2).

A breach of s 41 or a declaration that an act is unlawful or invalid can not of itself give rise to a claim for reasonable damages under the Constitution, s 58. Section 58(5) is to be read together with the earlier subsections. The word “infringement” referred to in subs (5) is the infringement of “rights and freedoms” as in subs (2), (3) and (4). Subsection (5) deals with the situation where an action taken is unlawful under s 41 but also gives rise to the infringement of “rights or freedoms”. There shall be no damages where the action giving rise to the infringement of a right or freedom is made unlawful only by s 41 and that there was genuine belief that action was required by law.

There are situations where actions which are unlawful or invalid under s 41 may not give rise to any infringement of “rights or freedoms”. The present case before the National Court is a case in point. The plaintiff alleges the breach of s 41 but not of a “right or freedom”.

My answer to this question would be in the negative.

QUESTION 2

There is no question that the Supreme Court has jurisdiction to apply or enforce s 41 under s 18 of the Constitution. The Supreme Court applied this provision in Premdas’ case. The question is whether the National Court can apply this provision under any other provision of the Constitution. Two provisions of the Constitution have been relied upon as the basis for the exercise of National Court jurisdiction, namely, s 155(4) and s 23 of the Constitution.

SECTION 155(4)

This provision has been fully considered by the Supreme Court in a series of cases: see Premdas’ case, Avia Aihi v The State [1981] PNGLR 81 and SCR 2 of 1981; Re s 19(1)(f) of the Criminal Code [1982] PNGLR 150.

The scope of this provision is set out in the judgment of Kearney DCJ in Avia Aihi v The State [1981] PNGLR 81 at 91.

“... I consider that the subsection gives unfettered discretionary power both to this Court and the National Court so to tailor their remedial process to the circumstances of the individual case as to ensure that the primary rights of parties before them are protected; And so, for example, the development of remedial process such as the Mareva injunction need not be as tortuous here as in England. But the Constitution, s 155(4) cannot affect the primary rights of parties; these are determined by law.”

This passage was approved by the Chief Justice in SCR 2 of 1981; Re s 19(1)(f) of the Criminal Code [1982] PNGLR 150 at 154 and on 155 he went on to say:

“... It does not, however, vest in the National Court or the Supreme Court the power to make orders which confer rights or interests on people. Such rights or interests are determined by other constitutional laws, statutes and the underlying law. Section 155(4) exists to ensure that these rights or interests are enforced or protected if existing laws are difficult to render protection or enforcement.”

Section 155(4) was applied in this way in Premdas’ case. Saldhana J (at 361) consider the application of s 155(4) within the context of protection of rights and freedoms. At 389 Wilson J applied the terms of s 155(4) in support of the right to be accorded natural justice to an alien whose permit had been revoked before the expiry date — based on the doctrine of “reasonable or legitimate expectation”.

Section 41 confers a right of action which can be enforced or protected under s 155(4).

SECTION 23

Application of s 23(1) is subject to the words:

“... unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision....”

I consider that the terms of s 41 are self-executing as well as enforceable under s 155(4). The sanctions under this provision are therefore not applicable.

The words of s 23(2) have not been made subject to the same limitation referred to above. It is clear that s 41 prohibits unlawful and invalid acts and therefore comes squarely within the terms of s 23(2). Persons aggrieved as a result of breach of s 41 may apply for orders preventing or remedying the breach.

My answer to the second question is that s 41 confers a right of action which may be enforced or protected by the National Court under s 23(2) or s 155(4) of the Constitution.

QUESTION 3

This question has been referred in general terms and partly on a hypothetical basis, in that it refers to any court or tribunal and to any provision of a constitutional law. With respect, the question in its present form can only be referred under the Constitution, s 19, and not under s 18(2). The Supreme Court in discussing the two provisions in SCR No 3 of 1982; Re ss 57 and 155(4) of the Constitution [1982] PNGLR 405 at 407 stated:

“We do not consider that s 18(2) allows hypothetical questions to be referred by lower tribunals to the Supreme Court. This situation is within the ambit, as we have stated, of s 19.”

However, the question can be rephrased so as to confine it to the issue before the National Court. The National Court was faced with the question of interpretation of s 18 of the Constitution. This is clear from the reference to a passage from the judgment of Greville Smith J in SCR No 2 of 1981; Re s 19(1)(f) of the Criminal Code [1982] PNGLR 150 at 163:

“It was under the provisions of this section [that is s 18] that his Honour purported to make the reference with which this Court is now dealing. However, before doing so his Honour, if I may so put it, assumed the function of the Supreme Court. As soon as his Honour began to consider whether the provisions of s 155(4) allowed him to deal with the case before him as he subsequently did, a question relating to the interpetation of the provision of a constitutional law within the meaning of s 18(1) of the Constitution arose, a question in respect of which, under that provision, the Supreme Court had exclusive jurisdiction.”

The Court went on to say:

“There is no majority decision or unanimous decision of the Supreme Court in support of the above opinion of Greville Smith J so even that question requires determination by the Supreme Court.”

The specific question to be considered within the context of the issue faced by the National Court is:

“Does s 18 of the Constitution say that as soon as the National Court begins to consider s 41 of the Constitution means one thing or another or allows the court or tribunal to do or desist from doing anything pursuant to s 41 that such a question must be referred to the Supreme Court?”

This question raises the proper interpetation and application of the words, “... where any question relating to the interpetation or application of any provision of a constitutional law arises ... the Court ... shall ... refer the matter to the Supreme Court ...” in s 18(2).

Section 18(1) of the Constitution gives the Supreme Court the original jurisdiction to the exclusion of other courts to resolve any question relating to the interpretation and application of a constitutional law. This original and exclusive jurisdiction of the Supreme Court is to be contrasted with other constitutional provisions within the Commonwealth. Under the Indian Constitution, the Supreme Court does not have the original or exclusive jurisdiction of interpretation or application of the Constitution but is given the final authority to interpret the Constitution by way of appeal: see s 132 of the Indian Constitution.

Section 18(1) of our Constitution can also be contrasted with the Federal Constitution of Nigeria 1962. Where a question of interpretation of the Constitution arises the court has a discretion to refer the question to the higher court. However, where one of the parties requests that the question be referred, the court is bound to refer the question: see s 115, Federal Constitution of Nigeria 1962.

The difference between our provision and the constitutional provisions referred to in India and Nigeria is that the lower courts in those countries have jurisdiction to resolve any question relating to the interpretation of the Constitution. However, under s 18(1) of our Constitution where a question of interpretation or application of a constitutional law arises only the Supreme Court has jurisdiction to resolve it. It is therefore significant to determine what is a question relating to interpretation or application of a constitutional law under s 18.

A question of interpretation or application can only arise where there is an issue as to the interpretation or application of a constitutional law. Where there is no such issue or question, there can be no question relating to the interpretation or application of a constitutional law. Let me explain. Parties in a case may assume a particular interpretation or applicability of a constitutional law in a case and the matter is not raised as an issue or raised as a question to be decided by the court.

Where, however, there is an issue and therefore the court must decide the issue, a question relating to the interpretation or application of a constitutional law arises. Let me elaborate. The question may arise in one of two ways. First, the parties appearing before the Court may disagree or dispute the interpretation or the applicability of a constitutional law. There can be no doubt that when this happens, a question relating to the interpretation or application of a constitutional law arises. Secondly, the parties maybe agreed as to the interpretation or applicability of a constitutional law. The question of the proper interpretation or application of a constitutional law in these circumstances still remains the responsibility of the court. The court may adopt the view put forward by the parties or alternatively, it may reject that view and adopt its own view. When the National Court is faced with any of the above circumstances, a question relating to the interpretation or application of a constitutional law arises and it is bound to refer the question for determination by the Supreme Court. It has no jurisdiction to resolve such questions.

Where a question relating to the interpretation or application of a constitutional law has been finally and authoritatively decided by the Supreme Court, it can not be said that such a question can arise again in a future case before the National Court. In other words, when such a question is raised before the National Court, the Court would be bound to adopt the interpretation or applicability of such a provision already decided by the Supreme Court. The Supreme Court of India has come to the same conclusion in these circumstances: see State of Jammu and Kashmir v Thakur Ganga Singh [1959] INSC 141; (1960) 2 SCR 346.

What I have said above is subject to the words “[S]ubject to this Constitution ...” under the Constitution, s 18(1). That is to say, where the Constitution or any constitutional law gives jurisdiction to the National Court to interpret or apply a constitutional law, unless there is also discretion given to refer such matters to the Supreme Court, I form the tentative view that the Court is bound to interpret and apply such a provision. The only way such a matter may come before the Supreme Court is by way of an appeal, reference under the Supreme Court Act (Ch No 37) or other procedure of judicial review provided for by the law: see Re s 42 of the Constitution and Prai and Ondowame [1979] PNGLR 42. I emphasise that this is a tentative view as the matter was not fully argued.

Now I must return to the specific issue raised in the question. In view of the conclusion which I have reached earlier in question 2, that is to say that the National Court has jurisdiction to interpret and apply the terms of s 41 under s 23(2) or s 155(4) of the Constitution, the National Court can interpret and apply the provision and it is not bound to refer the question under s 18 of the Constitution. This matter should be referred back to the National Court for further hearing.

My answer to question 3 would be as follows:

Where the National Court has no jurisdiction to interpret or apply a constitutional law and such a question arises, the Court is bound to refer the question to the Supreme Court. Where the National Court has jurisdiction to interpret or apply a constitutional law and such a question arises, the Court is not bound to refer the question to the Supreme Court.

AMET J:

QUESTION 1

Two issues are actually posed by this question, each of which is substantial in itself. The first issue of course is whether the Constitution, s 41, confers a “right”. Ancillary to this, if a right is found to be conferred, are the questions as to the scope and application of such a right. The second issue is, if s 41 does confer a right, is it such a right as envisaged and enforceable by the Constitution, s 57. To this latter issue, it is necessary to examine both provisions, the context of the Constitution in which they appear, to ascertain what matters each relate to.

I turn now to the first part of the question.

DOES S 41 CONFER A RIGHT?

It is useful to commence by examining the framework of the Constitution and the context within which the section is found. Section 41 is found in Div 3 of Pt III under the heading “Basic Rights”. Division 3 is subdivided into four subdivisions, A, B, C, and D. Subdivision A is the “Introductory”: ss 32-34. Subdivision B enumerates the “Fundamental Rights”: ss 35-37. Subdivision C sets out the “Qualified Rights” under two further subheadings: “General” (ss 38-41) and “Rights of All Persons” (ss 42-49). Sections 50-56 spell out the “Special Rights of Citizens”. Finally to complete the Division, subdiv D provides the “Enforcement” provisions, s 57 and s 58.

The first fact to be noted is that s 41 is found in the division dealing with “Basic Rights”, so that one would naturally expect it to have something to do with rights. It is more specifically found at the end of four sections under subdiv C on “Qualified Rights” dealing with general aspects of qualified rights: ss 38-41. Section 38 deals with “General Qualifications on Qualified Rights”, s 39 deals with the subject of what is “Reasonably justifiable in a democratic society”, s 40 on “Validity of Emergency Laws” and s 41 “Proscribed Acts”.

Upon an examination of the purposes of ss 38, 39 and 40, I have come to the conclusion that s 41 does apply to a law that validly restricts or qualifies a “basic right”. I leave the question open whether, because it follows immediately after s 40, which provides for the continued validity of emergency laws, s 41 applies generally to any act done under any valid law, but which does not necessarily restrict or qualify a basic right, which is harsh or oppressive etc.

In this context then, I consider that s 41 enables an aggrieved party, who has had certain basic rights restricted or qualified, to seek protection notwithstanding that the restriction or qualification of those basic rights are under a valid law, either under s 38 or s 40, if he could bring his grievance under the requirements of s 41(1)(a), (b) or (c).

Consequently, I consider that if a person can seek the protection of the courts against such “unlawful acts” under s 41, then that person must necessarily have a “right” that is able to be so protected. It may be said there are two rights still enabled by s 41. First is the right of still being able to seek protection of the courts notwithstanding the valid laws restricting all other rights; and more specifically, I consider are the “rights” enumerated by the terms of s 41(1)(a), (b) and (c). Under par (a) is, I consider, the right of a person not to be treated in a harsh or oppressive manner. The corresponding duty upon the person or organisation doing the act is not to, by that act, treat the person in a harsh or oppressive manner.

Once again I am of the view that s 41 confers a right. I agree with the views of Bredmeyer J in SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314 that though s 41 does not spell out the right in terms of the enumerated “Basic Rights” under Div 3, it is nevertheless a right, with a corresponding duty upon authorities who have jurisdiction under various valid laws limiting or qualifying basis rights, and which is enforceable in courts. By virtue of s 41 itself, such actions can be declared unlawful, at the initiative of the victim or recipient of such treatment. Additionally, I am of the opinion that s 41 confers a right which can be sought to be protected by some other provisions of the Constitution.

I now turn to the second part of the question.

IS THE S 41 “RIGHT” ENFORCEABLE BY THE NATIONAL COURT UNDER S 57?

As a first aid to the interpretation of the scope and ambit of s 57 it is useful to examine the context within which s 57 is to be found and its relationship to s 41. As I have noted, s 57 and s 58 appear at the very end of Div 3 in subdiv D under “Enforcement”. The heading of the section is “Enforcement of Guaranteed Rights and Freedoms”. Both s 41 and s 57 thus appear in Div 3 on “Basic Rights”, whilst s 41 comes under subdiv C on “Qualified Rights” s 57 and s 58 come under the next and last subdivision in the Division, subdiv D on “Enforcement”. Quite clearly s 57 and s 58 have to do with the enforcement of the basic rights under Div 3. Section 57 makes that purpose quite clear in quite specific and express terms; and I quote the parts I consider most relevant:

“A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court ...”.

Thus a right referred to in Div 3, for that is the division there referred to, “is enforceable ... in ... the National Court”. With respect, I consider s 57 cannot be in clearer terms than those, that any “right”, or “a right” referred to in Div 3 is enforceable in the National Court. I do agree that s 57 may have initially been recommended for the protection and enforcement of the “Human Rights” now enumerated under “Fundamental Rights” and “Qualified Rights” provisions of Div 3. Unfortunately however, the Constituent Assembly must be deemed to have been cognisant of the basis for the recommendation, yet it made no express qualification or limitation, on the applicability of s 57. It limited it to the Division, but to no specific right or freedom therewithin. With great respect I find myself disagreeing with the learned Chief Justice and Deputy Chief Justice. I can find no justification in the express terms of s 57 for limiting or confining its application to only some of the rights and freedoms referred to in Div 3.

In my respectful opinion, once s 41 is found to be a “right”, whatever the nature of that right may be, if it is “a right” nevertheless, and it is within Div 3, then it shall be equally protected and enforceable in the National Court.

I also consider that the express reference to s 41 in s 58 affirms my view. First, s 57 and s 58 must be read together. Section 58(1) says s 58 “is in addition to, and not in derogation of, Section 57 ....” Section 58(3), (4) and (5) all make reference to s 41 by reference. Section 58(5) provides:

“Damages shall not be awarded against a person who was responsible to a government body in respect of the action giving rise to the infringement if:

(a)      the action was an action made unlawful only by Section 41(1) (proscribed acts); and

(b)      the action taken was genuinely believed by that person to be required by law,

but the burden of proof of the belief referred to in paragraph (b) is on the party alleging it.”

Quite clearly in my view, in addition to any protective or enforcement order under s 57(3), the Court may, pursuant to s 58, make compensatory orders for reasonable damages. Section 58(2) specifically refers to the validity of emergency laws under Pt X which are validated by s 40. Section 58(3) permits damages to be “awarded against any person who committed, or was responsible for” any infringement of a right or freedom referred to in Div 3. Section 58(4) and (5) are to be read together — and the latter allows an individual to be relieved from personal liability to pay damages if his action was pursuant to s 41(1) and that he took the action genuinely believing it to be required by law.

Now, such a qualification under s 58(5) relieving an individual, responsible to a government body, from personal liability, in my opinion only becomes necessary if an infringement of s 41 right is enforceable under s 57 and s 58 in the first instance. To put it another way, I consider that it would not be necessary to allow for such a qualification if an infringement of s 41 could not be enforced under s 57 and s 58 in the first instance.

Now, as I say, applying these provisions conversely, such a qualification on compensatory damages against an individual responsible to a government body, who infringes under s 41, which award of damages can be made in addition to a declaratory order under s 57(3), becomes necessary or can be made, only if such an infringement of right or freedom under s 41, which is under Div 3, is enforceable by s 57 in the first instance. To put it another way, I consider that it would not be necessary to allow for such a qualification under s 58(5) if an infringement of a s 41 “right” could not be enforced under s 57 in the first instance. Section 58(3) and (4) damages may follow a s 57 protective order or declaration as the case may be.

The effect to that specific escape clause is that protection or enforcement of the s 41 right may be sought under s 57 and in addition compensatory damages may also be sought under s 58. Indeed as s 57 permits, such protection and enforcement and order for s 58 compensatory damages may be at the court’s own initiative.

I consider therefore that if there were some doubt as to the applicability of s 57 to a s 41 right, then this analysis of the combined effects of s 57 and s 58 with the latter’s specific application to s 41 clearly confirms the view that both s 57 and s 58 do apply to s 41.

I answer the question therefore in the affirmative.

The effect of that specific escape proviso is that protection or enforcement of the s 41 right may be sought under s 57 and in addition compensatory damages under s 58. Indeed as s 57 permits, such protection and enforcement and order for s 58 damages may be made at the court’s own initiative.

I consider therefore that if there were some reservation as to the applicability of s 57 to a s 41 right, then with respect, this analysis of the combined effect of s 57 and s 58 with the latter’s specific application to s 41 clearly confers the construction that both s 57 and s 58 do apply to s 41.

I answer the question therefore in the affirmative.

QUESTION 2

As I have answered the first question in the affirmative, this question does not arise for my consideration.

QUESTION 3

I have had the advantage of reading the judgment of the learned Chief Justice on this question. I agree with the reasoning and the conclusion stated therein and I have nothing to add.

Questions answered accordingly

Lawyer for the plaintiff: Beresford Love Francis and Co.

Lawyer for the defendant: Secretary for Justice.