In the Matter of Constitutional Validity of Constitutional Amendment (Provincial Governments and Local-Level Governments) [1995] PGSC 12; [1995] PNGLR 481 (20 September 1995)

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[1995] PNGLR 481 - In the Matter of Constitutional Validity of Constitutional Amendment (Provincial Governments and Local-level Governments) and Organic Law on Provincial Governments and Local-level Governments; Isidore Kaseng v Rabbie Namaliu, Speaker of the National Parli

IN THE MATTER OF CONSTITUTIONAL VALIDITY OF CONSTITUTIONAL AMENDMENT (PROVINCIAL GOVERNMENTS AND LOCAL-LEVEL GOVERNMENTS) AND ORGANIC LAW ON PROVINCIAL GOVERNMENTS AND LOCAL LEVEL GOVERNMENTS ISIDORE KASENG

RABBIE NAMALIU, SPEAKER OF THE NATIONAL PARLIAMENT AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA

CONSTITUTIONAL LAW - Constitutional amendments - Validity - Constitution, ss 12, 13, 14 - Constitutional Amendment No 16 (Provincial Governments and Local-level Governments).

PARLIAMENT - Non-justiciability of proceedings of Parliament - Constitution s 134.

ORGANIC LAWS - Organic Law on Provincial Governments and Local-level Governments - Validity.

WORDS AND PHRASES - “An Organic Law is a law made by Parliament” - “Intra-mural” deliberative activities of Parliament.

N2>1. the Constitutional Amendment No 16 (Provincial Governments and Local-level Governments) and the Organic Law on Provincial Governments and Local-level Governments are unconstitutional; and

N2>2. other laws purportedly passed under the Organic Law on Provincial Governments and Local-level Governments are invalid; namely, Local-level Government System (Interim and Transitional Arrangements) Act 1995, Provincial Governments and Local-level Governments (Consequential Amendments) Act 1995, and Provincial Governments and Local-level Governments (Consequential Repeals) Act 1995.

The Court addressed four issues: (1) whether the provisions of ss 12 and 14 of the Constitution relating to the manner and form of amendments to the Constitution and Organic Laws are mandatory; (2) whether the provisions of s 14 of the Constitution which require that proposed amendments to the Constitution and the Organic Laws be circulated to members of the National Parliament not less than one month before their introduction to Parliament are mandatory; (3) whether there had been an opportunity to debate the proposed laws, as required by s 14 of the Constitution; and (4) whether the requirements of s 12(1)(a) Constitution as to express authorisation for the making of an Organic Law had been complied with at the time of the making of the Organic Law.

Per Amet CJ, Hinchliffe and Andrew JJ (Kapi DCJ and Los J dissenting): the amendments to the Constitution and the new Organic Law on Provincial Governments and Local-level Governments are not unconstitutional. On the four issues:

N1>1. Per the Court: the requirements of ss 12 and 14 of the Constitution as to the manner and form of amendments to the Constitution and the Organic Law are mandatory.

N1>2. Per Amet CJ, Los, Hinchliffe, and Andrew JJ (Kapi DCJ dissenting): the requirements in s 14 of the Constitution that amendments to the Constitution and Organic Laws be circulated to members of the Parliament not less than one month prior to their introduction into the Parliament are mandatory, but since no standing orders as to the manner of circulation had been made, as required by s 14, the requirements are to be regarded as directory until the standing orders are, in fact, made. In terms of the directory nature of the requirement as to circulation, there has to be substantial compliance with the requirement of not less than one month. On the facts, there had been a period of circulation of 21 days before the introduction of the amendments into Parliament, and that was sufficient compliance with s 14 of the Constitution.

Per Amet CJ, Hinchliffe and Andrew JJ: the fact that no member of Parliament had complained at the shorter period of circulation and the fact that both the amendment to the Constitution and the proposed Organic Law had received overwhelming support in the votes in Parliament should be taken into account in determining whether the directory requirement had been complied with.

N1>3. Per Amet CJ, Los, Hinchliffe, and Andrew JJ (Kapi DCJ dissenting): there had been an opportunity to debate the proposed law to amend the Constitution and the proposed Organic Law, as required by s 14(2) of the Constitution, and, accordingly, the amendment and the proposed Organic Law are not unconstitutional.

Per Amet CJ: whether or not debate takes place under s 14(1) and (2) of the Constitution, and, if so, for how long and the subject matter of that debate, are matters that are non-justiciable as pertaining to the internal procedures of the Parliament.

N1>4. Per Amet CJ, Hinchliffe and Andrew JJ (Kapi DCJ and Los J dissenting): the requirement of s 12(1)(a) of the Constitution that an Organic Law may only be made if expressly authorised by the Constitution had been complied with, since the amendment to the Constitution had been made at the time of the making of the proposed Organic Law.

Per Amet CJ, section 12(1)(a) Constitution is descriptive only of the kind of laws that can be made as Organic Laws, and is not concerned with how an Organic Law is made, or the procedures to be followed, or the majority necessary for its making.

Per Amet CJ; Hinchliffe and Andrew JJ: the making of a law is to be distinguished from the effective commencement of a law and its application.

Per Hinchliffe and Andrew JJ: the Supreme Court can exercise jurisdiction where it is alleged that the requirements of the Constitution relating to constitutional amendments are breached, but where it is alleged that the passage of amendments through the Parliament breached parliamentary procedures, these matters are non-justiciable under s 134 of the Constitution.

AMET CJ.: The origin of this special application by way of an originating summons is sufficiently set out in the judgments of Kapi DCJ and Hinchliffe and Andrew JJ. I am content to adopt those for the purposes of my reasons. I also adopt the simplified terms in which Hinchliffe and Andrew JJ set out the three principal grounds of the application advanced for alleging that the constitutional amendments, the subject of this application, are unconstitutional, namely that:

N2>1. the gazetted proposed laws were circulated less than one month before the proposed laws were formally introduced into the Parliament; and

N2>2. there was no proper opportunity to debate the merits of the proposed laws by the National Parliament.

N2>3. In the alternative, the Organic Law was purportedly passed before the Constitution had been amended to enable or authorise such an Organic Law.

That Constitutional Amendment (Provincial Governments and Local-level Governments) was not passed in accordance with the requirements of the provisions of s 14 of the Constitution of Papua New Guinea in that:

N2>(a) there was no opportunity for debate on the merits of the proposed law, and

N2>(b) the gazetted proposed law was circulated to the members of Parliament less than one month before the proposed law was formally introduced into the Parliament on 28 March 1995.

The applicant contended that no adequate or meaningful opportunity was given for debate on the merits.

I find this ground to be quite misconceived. Section 14 (1) and (2) provides for opportunities for debate, and not adequate or meaningful opportunity for debate. The section does not even state that there should be debate, in fact, but only “opportunities for debate”.

Whether or not debate, in fact, takes place and, if so, for how long and by whom and what the subject matter of that debate is, are matters that are non-justiciable as pertaining to internal procedures of Parliament. Further issues as to whether attempts were made to gag debate and the motion and vote to end debate are also matters of internal procedures of Parliament that cannot be the subject of scrutiny by the Court.

No member of Parliament has complained that he was not given opportunity to debate. No member has asserted that he was not able to vote on the issues. In the face of the overwhelming majority vote, it is quite difficult for a non-Member of Parliament successfully advancing this ground that no adequate or meaningful opportunity was given for debate on the merits.

“Subject to Section 15 (urgent alterations), the opportunities for debate referred to in Subsection (1) must have been -

and the proposed law must be published by the Speaker in full in the National Gazette, and circulated, in accordance with the Standing Orders of the Parliament, to all members of the Parliament not less than one month before it is formally introduced into the Parliament,”

The principal purpose of subsection (2) is to facilitate and enable the “opportunities for debate referred to in subsection (1)”. This is to take place -

Prior to this, the following procedural requirements of the subsection are that the proposed law must be:

N2>4. not less than one month before it is formally introduced into the Parliament.

The proposed laws were published by the Speaker in full in the National Gazette. The Clerk of the Parliament deposed, and it is not disputed, that copies of the proposed laws were placed in the Parliament office of each member of Parliament on 7 March 1995. This, it was agreed, was only 21 days before the formal introduction of the laws into the Parliament on 28 March 1995.

It was agreed by the parties, and I accept, that there were, and are, no standing orders of Parliament in relation to the manner of circulation contemplated by s 14(2).

I am satisfied that, consistently with the principal purpose of facilitating “opportunities for debate”, the procedural requirements of s 14(2) are in principle mandatory: SCR No 2 of 1982; Re Organic Law [1982] PNGLR 214.

In order to properly facilitate and enable members of Parliament to be fully informed and in adequate time to do the necessary research; consultation with members of their constituency, with members of their political party or anyone else they consider necessary; and to exercise their function to debate and deliberate on the proposed law meaningfully and intelligently, it is imperative that these procedural requirements be mandatory.

For this same purpose, it is mandatory to “circulate” the proposed law to members of Parliament not less than one month before it is formally introduced into the Parliament. I believe it is to ensure that members are effectively given notice sufficiently within time that the further requirement that the proposed law be “circulated, in accordance with the Standing Orders of the Parliament” should be mandatory. The further purpose for Standing Orders in respect of the manner of method of circulation is to ensure that there is consistency in the manner or method of circulation and, further, whatever manner or method is prescribed should be one that will ensure some certainty of actual receipt by members of Parliament not less than one month before the formal introduction into the Parliament.

For these reasons, the requirement that there be Standing Orders of the Parliament, in accordance with which the proposed laws are to be circulated, is mandatory. In the absence of such standing orders, it cannot lawfully be asserted or assumed that members of Parliament were circulated with the proposed laws in the proper manner. There just is no “proper manner” until Parliament makes the necessary standing orders.

A further reason for the Standing Orders to be mandatory is that, if Parliament is in recess, and members are visiting their electorates and actually physically not in Parliament House until several days before Parliament is to meet, the method of circulation adopted by the Clerk could not possibly ensure that members received the proposed law not less than one month before formal introduction, even if they were so circulated more than one month before.

What then is the effect of the lack of standing orders as to the manner or method of circulation of the proposed laws? I consider it is vitally important to the effect of the requirements of s 14(2). I believe it is important for the determination of the issue as to whether placing of copies of the proposed laws in the Parliament office of each Member of Parliament 21 days before the formal introduction renders the making of the proposed laws invalid.

Because circulation could not be validly effected in accordance with the Standing Orders of the Parliament, because there are no standing orders in existence, I do not consider it can be validly asserted that the mandatory requirements of s 14(2) were not complied with. Whilst ever there are no standing orders, the whole of s 14(2) cannot be mandatorily complied with.

The effect, therefore, in my view, is that the requirements to circulate the proposed laws to Member of the Parliament not less than one month remains directory only until the prescription of the Constitution is complied with by Parliament to make standing orders in respect of the manner or method of circulation.

Additionally, no Member of Parliament has complained that he was not given ample time to prepare for debate or to cast his vote. The overwhelming majority vote militates against holding the passage of the laws invalid on the basis only that the proposed laws were circulated 21 days only before the formal introduction, and not at least one month before.

That the Organic Law on Provincial Governments and Local-level Governments was not passed and/or enacted in accordance with the requirements of ss 12 and 14 of the Constitution of Papua New Guinea in that the Organic Law is not all Organic Law that is expressly authorised by the Constitution within the meaning of ss 12(1)(a) of the Constitution. That is, the Organic Law on Provincial Governments and Local-level Governments was purportedly passed pursuant to ss 187B and 187C of the Constitutional Amendment (Provincial Governments and Local-level Governments) which was, at the time, a proposed law or still a “Bill” and not yet a Constitutional Law.

“For the purposes of this Constitution, an Organic Law is a law made by the Parliament that is -

N2>(a) for or in respect of a matter provision for which by way of an Organic Law is expressly authorized by this Constitution.”

I am of the opinion that s 12(1)(a) is descriptive only of the kind of law that an Organic Law is; that is, that it is to be a special class of law made by the Parliament, only in respect of any matter that the Constitution expressly gives authority to be made by an Organic Law. In other words, unlike an ordinary statute that Parliament has power to enact in respect of any matter, an Organic Law can only be made by Parliament if a constitutional provision expressly authorises the making of an Organic Law in respect of a particular subject matter.

This is all that s 12(1)(a) is concerned with. It is not in my view, concerned with how an Organic Law is made by Parliament, or what procedures are to be followed, or the majority necessary for its making, such as are required under Section 14.

Viewed from this perspective, on the facts of the legislative process involved in the making of these two pieces of constitutional law, the enabling Constitution Part VIA, ss 187A, 187B, and 187C were made on 27 June 1995, first in time, thus expressly authorising the making of the Organic Law, ss 187B and 187C.

I agree also with Hinchliffe and Andrew JJ that the making of a law is to be distinguished from the effective commencement of a law for application.

This was adequately in place by the making of the Constitution, Part VIA first in time on 27 June 1995.

There have been no breaches of ss 12 or 14 of the Constitution, and I am satisfied that the constitutional amendment and the Organic Law were validly enacted.

KAPI DCJ.: This is an originating summons seeking orders in the nature of declarations regarding the interpretation and application of the provisions of certain constitutional laws. This summons is brought before this Court in an originating proceedings on the basis that this Court has exclusive jurisdiction in relation to the interpretation and the application of the provisions of the Constitution pursuant to s 18(1).

The Supreme Court Rules do not provide for practice and procedure for commencement of originating proceedings before the Supreme Court. Ad hoc directions were given to commence these proceedings by way of originating summons under s 185 of the Constitution.

On 27 June 1995, the National Parliament passed (1) Constitutional Amendment (Provincial Governments and Local-level Governments) and (2) the Organic Law on Provincial Governments and Local-level Governments. These laws came into operation on 19 July 1995, when they were certified by the Speaker.

Mr Isidore Kaseng (hereinafter, the “applicant”), a citizen, brought these proceedings seeking declarations:

N2>1. that the Constitutional Amendment (Provincial Governments and Local-level Governments) is unconstitutional and null and void,

N2>2. that the Organic Law on Provincial Governments and Local-level Governments is unconstitutional and null and void, and

N2>3. that the other laws purportedly passed under the Organic Law on Provincial Governments and Local-level Governments are invalid. These laws are:

(b) Provincial Governments and Local-level Governments (Consequential Amendments) Law 1995.

Counsel for the applicant has attacked the validity of the constitutional law amendments and supporting legislation on the basis that they breach ss 12, 13 and 14 of the Constitution. Counsel questions the validity of Organic Law on Provincial Governments and Local-level Governments on the basis that it is not authorised by the Constitution, s 12(1)(a). This is an alternative argument, and I will return to it later in my judgment. Submissions in relation to ss 13(b) and 14 can be considered together. In essence, it is submitted that any alteration to the Constitution or Organic Laws can only be made by complying with the procedural requirements set out under s 14 of the Constitution.

First, I will deal with the procedural requirements raised under s 14, which are in the following terms:

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.

N2>(2) Subject to Section 15 (urgent alterations), the opportunities for debate referred to in Subsection (1) must have been-

N2>(3) Amendments to a proposed law to amend this Constitution or a proposed Organic Law shall not be moved unless they have been circulated to members of the Parliament before the end of the meeting of the Parliament at which the first opportunity for debate referred to in Subsection (1) occurs.

N2>(4) Subject to Subsection (6), in his certificate given under Section 110 (certification as to making of laws), the Speaker must certify that the requirements of Subsections (1), (2) and (3) or Section 15 (urgent alterations), as the case may be, have been complied with.

(ii) the respective numbers of members of Parliament voting for and against the proposal, and where the requirements of Subsection (2) were waived under Section 15 (urgent alterations) for and against the motion for the waiver,

and is, in the absence of proof to the contrary, conclusive evidence of the matters so stated...”

This provision sets out the procedure for making any alterations to the Constitution and Organic Laws. Let me restate these procedures in order of their occurrence. First, the Speaker must publish the proposed laws in full in the National Gazette. Second, the proposed laws must be circulated to all members of the Parliament (a) in a manner determined by the Standing Orders of the Parliament and (b) circulation must be made not less than one month before they are formally introduced into the Parliament. Third, after a proposed law is introduced in the Parliament, the Parliament must take a vote in relation to the proposed laws in accordance with Standing Orders of the Parliament and it must be supported by a prescribed majority of votes, in accordance with s 17 of the Constitution, at two different meetings of the Parliament. On each occasion, there must be opportunity for debate on the merits before the vote is taken. The two different meetings of the Parliament must be separated by at least two months.

Counsel for the applicant has submitted that the procedures set out by the Constitution for alteration of the Constitution and the Organic Laws are mandatory and, if not complied with, would render those laws invalid and of no effect.

In this case, the applicant specifically alleges that (1) the proposed laws were not circulated to the members of the Parliament within the prescribed time, and (2) no opportunity was given to the members to debate the proposed laws on the merits. For these reasons, it is submitted, the constitutional laws in question are invalid.

Counsel for the first and second respondents submitted that the requirement for circulation of proposed laws to members of Parliament in not less than one month and the opportunity for debate on the merits of the proposed laws are not mandatory, but are directory.

They further submitted that the question in relation to circulation of proposed laws is whether or not there is substantive compliance with circulation of the proposed laws, in the circumstances.

In relation to the question of opportunity for debate, counsel for the respondents submitted that, in fact, there was opportunity given to the members of the Parliament to debate the proposed laws on their merits.

Submissions by counsel for the respondents on this issue were based on principles applicable to provisions of ordinary statutes. I do not find these authorities helpful. We are here dealing with the provisions of the Constitution, which is different in nature and character and, therefore, must be guided by principles peculiar to its character.

In SCR No 2 of 1982; Re Organic Law [1982] PNGLR 214, three questions were referred to the Supreme Court under s 19 of the Constitution concerning the validity of the Organic Law on National Elections (Amendment) Act 1981. The Act was passed as an ordinary Act of the Parliament and passed on the voices. The Parliament did not comply with all the requirements of s 14 of the Constitution. The relevant question was:

“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?”

“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.”

“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 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).”

“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.”

In my view, the issue raised before us was raised in that case and unanimously decided in favour of the view that the requirements set out in s 14 of the Constitution are mandatory and, if not complied with, would render any such law which does not comply to be invalid.

Counsel for the respondents sought to distinguish this decision on the basis that it did not deal with the issue now before us. However, as I have already pointed out earlier, the issue of whether requirements under s 14 are mandatory was squarely raised and decided by the Supreme Court. I have no reason to differ from that opinion.

However, I would like to set out other reasons to support the same view. The Constitution is the very basis of this nation and all its institutions. It is not intended to be an ordinary Act of the Parliament, which may be amended easily. The constitutional framers considered, on the one hand, the power of the Parliament to alter the Constitution where the need may arise to do so; and, on the other hand, to ensure that the Constitution is not easily changed at the whim or impulse of the government of the day. This is clearly expressed in the Final Report of the Constitutional Planning Committee (hereafter, CPC Report) at page 6/7, para 51-52:

N2>“51. One of the most important of the law-making powers vested in any parliament is the power to alter the Constitution. In our consideration of the procedure we should recommend for constitutional amendment we have been conscious of the need to achieve some balance between two conflicting requirements. On the one hand, the Constitution must not be too easy to change or else it would be constantly subject to the whim or impulse of the government of the day. On the other hand, the Constitution must not be too difficult to change either for, if it is, it could cause such frustration to the political process in changing circumstances as to be ignored or discarded altogether. To avoid the latter danger, we recommend that any proposal for amending the Constitution should require the approval only of the National Parliament. However, we recommend also procedures intended to ensure that an amending Bill is well publicised, that sufficient time is provided for it to be given careful consideration, and that to be passed, it has the support of a substantial proportion of the members of Parliament.

N2>52. Specifically, our proposals require that firstly, an amending Bill be published, and copies distributed to all members of parliament, at least one month prior to its presentation. Secondly, a period of at least three months must have elapsed between the making of the first substantive speech by the mover of the Bill, and the continuation of debate or the taking of a vote on the Bill after the conclusion of that speech. Thirdly, to be passed, the Bill must be supported by the individually recorded votes of not less than the special majorities prescribed in a Schedule to the Constitution. For the amendment of most provisions, we recommend a majority of two-thirds of the total membership of the parliament, the provision found most commonly in constitutions. (See the First Schedule to our Report).”

Pursuant to these paragraphs, the CPC recommended the following sections at p 6/25:

N2>“40. The National Parliament may alter the Constitution, but only in accordance with its provisions.

N2>41. A bill for an Act of the National Parliament to alter the Constitution shall not be passed unless -

N2>(a) the bill is published in the Government Gazette and in such other manner as is prescribed by law, and circulated to members of the parliament at least one month prior to its presentation;

N2>(b) a period of at least three months elapses between the making of the first substantive speech by the mover of the bill, and the continuation of debate or the taking of a vote on the bill after the conclusion of that speech;

N2>(c) the bill as a whole is supported by the individually recorded votes of not less than the special majorities prescribed in the relevant schedule to the Constitution.”

It is clear from the CPC Report that the procedures set out in s 14 were intended to be mandatory. To hold otherwise would be to render the Constitution open to the whims and impulses of governments of the day to change at will. This intention is clearly apparent in the words of s 13:

The intention to make these procedures mandatory is also borne out by s 15 of the Constitution. This section provides that the requirements under s 14 (2) may be waived on the ground of urgency. This provision sets out a particular procedure to waive the requirements. If these procedures are not complied with, then there can be no effective waiver. This, in my view, clearly indicates the mandatory nature of s 14. This argument is not affected by the fact that s 15 is no longer applicable (s 15(1)).

The mandatory nature of s 14 is not unusual. Where the Constitution views certain provisions to be important, strict requirements or procedures are laid down to change those provisions. As an example, where a law seeks to qualify human rights provisions, requirements of s 38(2) of the Constitution must be strictly complied with (see State v NTN Pty Ltd [1992] PNGLR 1).

There is no dispute that the proposed laws were published in full in the National Gazette.

However, two issues may arise on the question of circulation. The first is the manner in which the members may be circulated with the proposed law. Section 14(2) requires a proposed law to be circulated in accordance with the Standing Orders of the Parliament. All counsel submitted that there are no relevant Standing Orders. However, my own research reveals that there are relevant Standing Orders which specifically deal with the manner in which a bill is circulated before it is introduced in the Parliament. The relevant Standing Order is s 200. It provides, as far as it is relevant for our purposes, that a bill may be circulated to every member (a) during a meeting of the Parliament - Clerk to cause a copy to be placed on the desk or in the office of every member; (b) at other times - Clerk to cause a copy to be posted to every member. However, I do not have to determine the applicability of this particular Standing Order, because the manner of circulation of the proposed laws to every member of Parliament is not an issue in this case. We have to assume, for the purposes of this case, that all members were circulated with the proposed laws in the proper manner when the Clerk of the Parliament caused copies of the proposed laws to be placed in the office of every member on 7 March 1995.

The second issue which may arise in relation to circulation is whether or not every member was circulated with the proposed laws no less than the prescribed period of one month. This issue is specifically raised by the applicant in the originating summons. It is not disputed that the proposed laws were circulated 21 days before the formal introduction of the laws into the Parliament. This falls short of the one month required under s 14 (2) of the Constitution.

Counsel for the respondents submitted that the circulation of the proposed laws 21 days before the formal introduction of the laws in the Parliament was sufficient compliance with the requirement for circulation no less than the prescribed period of one month. This submission completely ignores the mandatory nature of the requirements under s 14 (2) of the Constitution.

Furthermore, s 15(2) of the Constitution gives the power to the Parliament to waive the requirements of s 14(2) on the ground of urgency. There is absolutely no power in this Court to waive the period of one month or deem any period less than one month to be sufficient compliance. To do so is to clearly usurp a power expressly given to the Parliament. In any case, the Parliament could not have waived this particular requirement, as the provisions relating to urgent alterations under s 15 do not apply to alterations of the Constitution or Organic Law for the purposes of provincial government and local-level government (see s 15(5)(ka) of the Constitution). The fact that s 15 of the Constitution is not applicable (s 15(1)) does not affect the argument that this Court has no power to waive this requirement.

I cannot find any basis in law which can cure the non-compliance by the Parliament of the mandatory requirement to circulate the proposed laws no less than the prescribed period of one month.

I have had the opportunity of reading the majority opinion on this issue. They provide two reasons for their opinion. First, in relation to the manner in which a Member may be circulated with a proposed law, they find that there are no relevant Standing Orders regarding the manner of circulation of a proposed law to a Member.

I do not find it necessary to decide this matter, as it is not an issue. The applicant has not suggested that the Speaker of the Parliament should have circulated the proposed laws to every member in a manner different to the manner in which it was in fact done, namely, by circulating the proposed laws to the office of each Member of the Parliament by delivering a copy of the proposed law to the Office of each Member within the precincts of the National Parliament.

The manner of circulation of a proposed law is relevant to the question of how a member is effectively circulated with a copy of a proposed law. This requirement addresses the manner or the form of circulation, such as circulation by personal service, delivery at place of work or residence, or circulation by mail. Accepting the argument that Standing Orders have not yet prescribed the manner, form, or method of circulation, what legal consequences follow from this? First, the Speaker is unable to determine the proper manner or method of circulation of a proposed law to Members of Parliament. Second, the Speaker or the Clerk of Parliament cannot determine the proper method or circulation to fill in the gap. If they did that, it would be clearly inconsistent with s 14 (2) of the Constitution. The power to determine this is given to the Parliament to determine by way of standing orders.

The failure by the Parliament to prescribe the proper method of circulation by way of the Standing Orders does not, and cannot, make a mandatory requirement into a requirement which is merely directory. The process of reasoning by the majority in this respect is not logical, and is inconsistent with the conclusion that circulation of a proposed law in accordance with the Standing Orders is mandatory.

Furthermore, the failure by the Parliament to prescribe the proper method of circulation by way of the Standing Orders does not give rise to any power or jurisdiction in the Court to waive any of the mandatory requirements.

In my opinion, the proper view is that, if the Parliament has not yet prescribed the manner of circulation, then it must do so. It has no choice in the matter. Until the Parliament prescribes the manner of circulation, there can be no proper circulation in accordance with s 14 (2) of the Constitution, both in terms of the manner of circulation as well as circulation to members of Parliament not less than one month before it is formally introduced into the Parliament. The period of one month is calculated from the effective date of circulation to the day the proposed laws are introduced into the Parliament. There can be no effective date of circulation if there is no proper method of circulation in the Standing Orders.

We know, in this case, that the Clerk of Parliament, in the exercise of his discretion, decided to circulate the proposed laws by causing copies of the proposed laws to be placed in the office of every member of Parliament. The Clerk was not entitled to determine the method of circulation, as the power to determine this is given to the Parliament by way of the Standing Orders. However, the applicant in this case has not raised this issue. That matter cannot be taken any further.

The issue in this case is whether the proposed laws were circulated no less than the prescribed period of one month. That is a separate requirement. This issue does not deal with the proper method or manner of circulation. It deals with the question of whether or not the members were circulated with the proposed laws within the prescribed period of time. This brings me to the second reason for decision by the majority opinion. In this regard, they conclude:

“There is no dispute that a form of circulation took place 21 days prior to the formal introduction into Parliament.”

N2>1. All Members of Parliament were circulated with the proposed laws by causing copies of the proposed laws in the office of every Member of Parliament. No one questions the method of circulation and therefore it is not relevant.

N2>2. The circulation was made 21 days prior to the formal introduction into Parliament.

I have no complaint about the finding that circulation was made 21 days prior to the formal introduction into Parliament. What the majority opinion fails to do is to go on and consider the issue raised by the applicant, namely, is the circulation of the proposed laws 21 days prior to their formal introduction into Parliament compliance with the requirement to circulate the proposed law to all members of the Parliament not less than one month before it is formally introduced into the Parliament (s 14(2) of the Constitution)?

“There seems to be no complaint from any of the Members about the short circulation, and none of them seem to have been affected in casting their votes.”

This reasoning simply avoids the real issue raised above and, at its best, can be regarded as a ruling on the lack of standing by the applicant to bring this complaint before the Court.

With due respect to the majority opinion, this issue was not raised by the respondents, and, in fact, Mr Henao at the outset of the hearing expressly indicated that the question of locus standi is not all issue.

Furthermore, the majority opinion simply makes the finding without any basis whatsoever. The issue of locus standi in this jurisdiction on constitutional matters was decided in the case of SCR 4 of 1980; Re Petition of Somare [1981] PNGLR 265. The Supreme Court established the principle that, in constitutional matters, a citizen has standing to come to this Court. In addition, the applicant is not a busybody meddling in other people’s business. The applicant was a Premier whose position has been abolished by the new reforms and, therefore, has sufficient interest to challenge the new laws in this Court. Mr Henao, rightly, did not contest the issue of locus standi.

The requirement for opportunity for debate on any proposed law to alter the Constitution or an Organic Law is prescribed by s 14(1) of the Constitution. I have already concluded that this and other requirements under s 14 of the Constitution are mandatory. On the question of the requirement for opportunity for debate on the merits, the mandatory nature of this requirement is also supported by a decision of the Supreme Court in SCR No 3 of 1984; Re Constitutional Alterations [1984] PNGLR 374.

The opportunity for debate here refers to the opportunity for debate on the floor of the Parliament. In practical terms, Members of the Parliament must be given an opportunity to meaningfully and adequately debate the merits of the proposed law. I reach this conclusion on the basis that the Constitution itself attaches much importance to any proposal to amend the Constitution or Organic Laws. These documents form the very backbone of our system of government. It should not be changed without adequate and meaningful debate on the merits of any proposed laws for change. The opportunity for debate must be given on at least two occasions before a vote is taken (s 14(1)). These two occasions must take place at two different meetings of the Parliament, separated in time by at least two months (s 14(2)).

There is no dispute that the proposed laws were voted on in two different meetings of the Parliament separated by at least two months. The votes were taken on 29 March 1995 and 27 June 1995.

The question then arises, was there opportunity for meaningful and adequate debate on the merits of proposed laws on both occasions?

In considering whether there was opportunity for meaningful and adequate debate on the merits, this has to be considered together with other relevant provisions of the Constitution. Section 260 provides for an establishment of a General Constitutional Commission. The function of the Commission is to inquire into the workings of the Constitution and Organic Laws and make recommendations to the Parliament on any amendments (s 260 (4) and (5)). Section 261 provides for an Interim Constitutional Commission. Section 261(2) provides that a report may be presented to the Parliament “before there is an opportunity for debate of the proposed legislation”. The point I wish to make is, for there to be meaningful and adequate debate, there has to be a report setting out the various issues relating to the workings of the Constitution and Organic Laws and the proposals to amend them.

Section 262 provides for establishment of a Commission on Provincial Government, the primary function of which should be to investigate the workings of the system of provincial government. This Commission is required to provide a report to the General Constitutional Commission, which would then provide a report to the Parliament under s 260(5). However, the Parliament has proceeded to provide a report by way of Permanent Parliamentary Referral Committee on Justice, which is set up under the Permanent Parliamentary Committees Act 1994, which came into force on 11 August 1994. Under this Act, a matter may be referred to a committee in accordance with Standing Orders of the Parliament (s 15(a) of the Act). Where such a matter is referred, the committee may inquire into the matter and report to the Parliament within seven (7) sitting days (s 18(a) of the Act). Section 20(1) of the Act stipulates that the Parliament shall not proceed with a matter until a report is made to the Parliament in accordance with s 18 and dealt with in accordance with s 19 of the Act.

In this case, the proposed laws were introduced into the Parliament on 28 March 1995. After the first reading, the laws were referred to the Permanent Parliamentary Referral Committee on Justice. Under the Act, the Committee had at least seven days in which to compile a report. Under s 20(1) of the Act, the Parliament may not dealt with the matter until a report is received and dealt with under ss 18 and 19 of the Act. However, s 20(1) is not applicable if, by a suspension of the Standing Orders, a matter is presented in Parliament to be dealt with forthwith. On 29 March 1995, Mr Narokobi moved such a motion, and it passed. Therefore, breach of s 20(1) of the Act does not arise. Nevertheless, the manner and the speed at which the proposed laws were dealt with, without a report, is a relevant consideration on whether there was adequate and meaningful debate on the merits of the proposed laws. A report is clearly intended to provide informed debate on proposals to change the Constitution and Organic Laws (s 261(2) of the Constitution). Reports by committees were intended to enable Parliament to perform its functions effectively. This was well stated by the CPC Report at p 6/10 para 67:

“The committees we propose would provide much greater opportunities than exist at present for members on either side of the House who do not become Ministers to contribute usefully to the government of the country. Under the existing system there is often neither the time nor the means to carry out adequately the basic parliamentary functions. With their increasing volume and complexity, legislation and reports cannot be satisfactorily considered during normal sessions of the legislature, nor can there be adequate probing and checking of government activity. Both functions would be greatly facilitated by the use of committees which can act while parliament is in recess. These committees could also work constructively by carrying out inquiries into various matters of national importance either referred to them by parliament or nominated on their own initiative.”

The Permanent Parliamentary Referral Committee on Justice was deprived of the opportunity to provide a report to debate the proposed laws on their merits on 29 March 1995. Recognising the enormous responsibility, the Committee resolved on 28 March 1995 to have more time to study the proposals and then make a detailed report. The Committee made the following remark in its report:

“At 9.30 am on 29 March, the Committee met again and resolved to adhere to its resolution of 28 March. Mr Andrew Baing, Deputy Leader of Government Business, advised the Committee that the Prime Minister was adamant to proceed with the second reading with or without a report that morning. It was apparent, the government was, as a matter of expediency, asking the Committee to cooperate and have the proposed laws proceed to the second reading and first vote.”

It is apparent from all the facts I have referred to that the proposed laws were speedily introduced, without any opportunity to enable the Parliament to adequately and meaningfully debate the proposed laws on their merits.

I accept that eight members of the Parliament debated the proposed laws. After this, Mr Andrew Baing moved a motion to close debate, and the motion was carried.

However, having regard to all the matters I have discussed, I cannot conclude that there was opportunity for adequate and meaningful debate on the merits of the proposed laws on 29 March 1995.

As to the debates on 27 June 1995, the members had more time to consider the proposed laws since the last sitting, the Permanent Parliamentary Referral Committee on Justice tabled its report and, therefore, it could be said that members had time to prepare for debate on the merits. However, only seven members were allowed to debate the merits of the proposed laws, and no reference was made to the report tabled by the Permanent Parliamentary Referral Committee on Justice. There was an attempt by the Deputy Leader of Government Business to prevent any debate after the speech by the Prime Minister on 27 June 1995, but the motion was withdrawn. However, he successfully moved a motion to close debate on the merits after seven members spoke on the proposed laws. I cannot conclude that this allowed for adequate debate on the merits.

I conclude, therefore, that the Parliament breached the requirement for opportunity for adequate and meaningful debate on the merits on both occasions.

WAS THE ORGANIC LAW EXPRESSLY AUTHORISED BY THE CONSTITUTION AT THE TIME IT WAS MADE BY THE PARLIAMENT?

Counsel for the applicant has submitted that, if all the arguments put so far are not successful, then he makes the alternative submission that the Organic Law on Provincial Governments and Local-Level Governments is invalid on the basis that when it was made by the Parliament, it was not a law authorised by the Constitution s 12(1)(a).

N2>(1) For the purposes of this Constitution, an Organic Law is a law made by 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.”

The meaning of this provision is this: for the Parliament to make an Organic Law to make provision in a matter, there must be a provision in the Constitution which authorises an Organic Law to make provision for that matter. To put it differently, no Organic Law may be made by the Parliament in respect of a matter unless there is a constitutional provision in force which authorises an Organic Law to make provision for the matter. That is the proper meaning to be given to the words “Organic Law is expressly authorised by this Constitution”.

That is not the end of the matter. We also have to give meaning to the words “an Organic Law is a law made by Parliament”. The question arises: how does Parliament make an Organic Law? An Organic Law may be altered only by another Organic Law or by an alteration to the Constitution (s 12(2) of Constitution). The requirements for alterations to both the Constitution and an Organic Law are set out under s 14 of the Constitution. I have already dealt with the mandatory nature of these requirements. A proposed law to amend an Organic Law is made when the Parliament votes in support of the bill by the prescribed majority on two occasions. In this case, the two occasions were 29 March 1995 and 27 June 1995. When the Parliament made the law, which process was completed on 27 June 1995, was there a constitutional provision which authorised an Organic Law to make provision for provincial governments and local-level governments? The answer is clear. At that time, the now repealed s 187B of the Constitution was in force, and it only authorised an Organic Law to provide for a system of provincial government, and not local-level Government. The Organic Law made by the Parliament on 27 June 1995 provides for both systems. This was not authorised by the Constitution at the time.

When the constitutional amendment came into force as Constitutional Amendment No 16 - Provincial Governments and Local-level Governments on 19 July 1995, it repealed the old provision and replaced it with 187B, which authorises an Organic Law to provide for provincial governments and local-level governments. After this point in time, the Parliament is authorised to make such a law.

Let me illustrate the practical outworking of this provision by referring to the original provisions in relation to provincial government. The provincial government system was established by Constitutional Amendments No 1, which came into force on 30 September 1976, upon certification. Section 187B provided:

“An Organic Law shall provide for, or make provision in respect of, the granting to a province of provincial government after consultation, as prescribed by an Organic Law, with the province.”

This provision authorised an Organic Law to make provision “in respect of, the granting to a province of provincial government.”

The proposal to pass the Organic Law on Provincial Government, as authorised by s 187B, was published in the National Gazette (G88) on 29 October 1976. The Organic Law was subsequently passed by the Parliament and came into operation on 1 April 1977.

It is fundamental that Constitutional Amendment No 1 and the Organic Law on Provincial Government were not passed or made simultaneously. The Organic Law on Provincial Government was made after the Constitutional Amendment No 1 came into operation. This consideration is fundamental to the meaning and application of s 12(1) (a) of the Constitution. The order in which the enabling constitutional provision, which authorises an Organic Law, and the Organic Law which is authorised are made at different points in time is fundamental.

In my opinion, the Parliament committed this fatal error when it made the constitutional laws simultaneously on 29 March and 27 June 1995. The appropriate method is for the constitutional amendment to be passed and brought into operation, and then to take steps to pass the proposals to amend the Organic Law.

In this regard, I have read the draft opinion of the majority. Essentially, they conclude that the matters raised under s 12(1)(a) are internal procedures of Parliament and are non-justiciable under s 134 of the Constitution.

With the greatest respect to the majority, issues on non-justiciability and s 134 of the Constitution were raised by counsel for the applicant in his written submissions, and Mr Henao, at the outset of the hearing, expressly indicated that non-justiciability was not an issue.

Furthermore, s 134 of the Constitution has no application to the matter set out under s 12(1)(a). Section 134 is to be read together with s 133 of the Constitution. The “procedures prescribed for the Parliament or its Committees” are provided for by the Parliament pursuant to s 133 of the Constitution in the Standing Orders. We are not concerned with any question relating to a matter of procedure under the Standing Orders.

In coming to this conclusion on this issue, I have considered the point that, if the new Organic Law is invalid for the reasons I have given, whether there would be a gap in the law. I do not consider that there would be a gap in the law. If the new Organic Law is invalid, the old Organic Law on Provincial Government would be in force. The old regime would continue until the new Organic Law is passed. The continuation of the old regime can be saved by transitional provisions that may be made under the Constitution.

N2>1. The Constitutional Amendment No 16 - Provincial Governments and Local-level Governments and the Organic Law on Provincial Governments and Local-level Governments are invalid on the basis that the Parliament did not comply with the mandatory requirements set out under s 14 of the Constitution.

N2>2. Alternatively, the Organic Law on Provincial Governments and Local-level Governments is invalid on the basis that it was not made in accordance with s 12(1)(a) of the Constitution.

N2>3. All legislation passed pursuant to these Constitutional Laws are also invalid and of no effect.

LOS J.: I join my brothers Hinchliffe J and Andrew J in the issues of the circulation of the proposed laws and the debate on the merits. However, I differ on the alternative submission. The counsel for the applicant submits that the Organic Law on Provincial Governments and Local-level Governments (the Organic Law) is invalid on the basis that it is not a law authorised by s 12(1)(a) of the Constitution. I agree with the submission. My basic reason is this: at the time of passing the Organic Law, there existed no Constitutional Law that authorised that Organic Law to be made. Section 12 (1)(a) says:

N2>“(1) For the purposes of this Constitution, an Organic Law is a law made by the Parliament that is -

(a) for or in respect of a matter provision for which by way of an Organic Law is expressly authorized by this Constitution” (emphasis mine).

I say simply this, at the time the Organic Law had gone through the process of being passed from the beginning to the end, there existed no constitutional provision that authorised this Organic Law to be made. The facts are clear: Constitutional Amendment (Provincial Governments and Local-level Governments), which is relied upon as the law authorising the Organic Law to be made, had gone through the same process (that is circulation, reading on two occasions, debates, votes and certification) simultaneously.

The Parliament, as the supreme law-making body, has the power to make any law for the good governance of the country and its people under s 100 of the Constitution, but that power is subject to some basic limitations. One of the limitations is the laws the Parliament makes must be subjected to the supremacy of the laws in the ranks as provided in s 10 of the Constitution. Making of an Organic Law authorised by s 12(1) of the Constitution is made subject to the supremacy of the Constitution.

It is fundamentally wrong, in my view, to proceed on the basis that an authorising bill may be passed together with an authorised bill. It may be possible, though I think it offensive, to enact certain rules and regulations simultaneously with an Act that is supposed to authorise these rules, but the importance of an Organic Law is such that it has to go through the ss 12 and 14 requirements separately. Section 14(1) cannot be interpreted to authorise simultaneous passing of a proposed law to alter the Constitution and a proposed Organic Law. A proposed Organic Law must be voted on at “least two occasions”, separately, and debate on a proposed Organic Law must be “during different meetings”.

To argue that, as long as s 12(1) is complied with, that is the end of the matter is to ignore the importance the Constitution attaches to making of an Organic Law. In my view, s 12(1) cannot be read on its own. Five years or ten years down the line, if a question is asked without reference to the factual knowledge that the Court has now, s 12(1) may be able to answer that question as a matter of constitutional law; that is, that the Organic Law was made by the Parliament and there existed a provision of the Constitution (the constitutional amendment) which expressly authorised its existence, and it is not inconsistent with this provision. However, we (the Court) are aware that there was no constitutional provision in existence that could authorise the Parliament to pass all Organic Law specifically authorising creation of a new form of provincial government and local-level government. Put differently, the proponent of the contrary view would argue that, yes, in Papua New Guinea, an Organic Law is made when it is expressly authorised by the Constitution, and its terms are not inconsistent with the Constitution. If that is the law, then one will have to make all exception and say, but sometimes, like in this case, the Parliament may make all Organic Law without there exists a provision of the Constitution which authorises the making of the Organic Law, but may pass a constitutional amendment simultaneously and apply it retrospectively to authorise the existence of that specific Organic Law. I think if we interpret the Constitution this way, the Parliament is impliedly allowed to act beyond the constitutional powers.

I consider, therefore, that the Organic Law on Provincial Governments and Local-level Governments is invalid.

HINCHLIFFE, ANDREW JJ.: This is an application by the Premier of the Western Province by way of originating summons seeking orders in the form of declarations in relation to the interpretation and application of amendments to the Constitution and to the Organic Law on Provincial Government.

On 27 June 1995, the National Parliament of Papua New Guinea enacted, firstly, the Constitutional Amendment (Provincial Governments And Local-level Governments) and, secondly, the Organic Law On Provincial Governments And Local-level Governments. Both laws came into operation on 19 July 1995, when they were certified by the Speaker. Further laws passed under the Organic Law were:

N2>2. Provincial Governments and Local-level Governments (Consequential Amendments) Act 1995.

N2>3. Provincial Governments and Local-level Governments (Consequential Repeals) Act 1995.

It is contended that all of these amendments to the Constitution and the Organic Law and the enabling legislation are invalid and unconstitutional in that they were not passed or enacted in accordance with ss 12 and 14 of the Constitution. In simplified terms, there are three principal grounds advanced for alleging that these amendments are unconstitutional, namely that:

N2>1. the gazetted proposed laws were circulated less than one month before the proposed laws were formally introduced into the Parliament; and

N2>2. there was no proper opportunity to debate the merits of the proposed laws by the National Parliament; and

N2>3. the Organic Law was purportedly passed before the Constitution had been amended to enable or authorise such an Organic Law.

N2>1. That the Constitutional Amendment (Provincial Governments and Local-Level Governments) Law 1995 (“Constitutional Amendment”) was not passed in accordance with the requirements of the provisions of s 14 of the Constitution of Papua New Guinea in that:-

(b) The Gazetted proposed Law was circulated to the members of Parliament less than one month before the proposed law was formally introduced into Parliament on the 28th March 1995.”

N2>(1) Subject to Sections 12(3) (Organic Law) 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 voters determined in accordance with Section 17 (“prescribed majority of votes”) expressed on at least two occasions after opportunity for debate on the merits.

N2>(2) Subject to Section 15 (urgent alterations), the opportunities for debate referred to in Subsection (1) must have been -

Counsel for the applicant argued that the procedures set out in the said s 14 are mandatory, and if there is a failure to comply, then the subsequent laws would be invalid. He argued that the required one month circulation period was not complied with and, therefore, the relevant Constitutional Laws are invalid.

Counsel for the respondents argued that the said procedures were directory only, and the matter to consider is whether or not there has been substantial compliance with the circulation of the proposed laws.

In SCR No 2 of 1982; Re Organic Law [1982] PNGLR 214, this issue was considered by the Supreme Court. (Ed. This judgment has been quoted in relevant detail at p 493 of this report.)

In light of the decision in that case, we are quite satisfied that the requirements set out in s 14 of the Constitution are mandatory and, if not complied with, then the law would be invalid.

But be that as it may, we are also satisfied that the said s 14(2) is not fully in force in that there are no Standing Orders of Parliament with regard to the circulation of the proposed law. Both counsel agreed that that is the present situation.

There has been a suggestion that s 200 of the Standing Orders sets out the procedure in relation to the circulation of the proposed law, but we are unable to agree. Section 200 refers to the circulation for the “second reading of a Bill”. It is something very different to the circulation of a proposed law to alter the Constitution or a proposed Organic Law. We agree with counsel that there are no relevant standing orders regarding circulation. To our minds, it follows that, at the moment the requirement as to circulation could not possibly be mandatory, as it would only be mandatory if there were accompanying standing orders. Then, and only then, would it become mandatory. That point does not seem to have been raised in SCR 2 of 1982; Re Organic Law (supra).

Therefore, we are of the view that, as the circulation requirement in s 14(2) is only directory at the moment, it must, therefore, be considered whether or not substantial compliance has occurred. There is no dispute that a form of circulation took place 21 days prior to the formal introduction into Parliament. In para 3 of his affidavit of 1 July 1995, Ano Pala, the Clerk of the National Parliament, states as follows:

N2>“3. I refer to these proceedings and say that on the 7th day of March 1995 a copy of National Gazette No. G19 dated Monday, 27th February 1995 containing the Proposed Constitutional Amendment (Provincial Governments and Local-Level Government) and the Proposed Organic Law on Provincial Governments and Local-level Governments was circulated to Members of the National Parliament by delivering a copy of the National Gazette to the Office of each Member of the National Parliament within the precincts of the National Parliament.”

There seems to be no complaint from any of the Members about the short circulation, and none of them seem to have been affected in casting their votes.

We are, therefore, of the view that, under all the circumstances, the requirement regarding circulation has been substantially complied with, and no invalidity has arisen because of the circulation occurring 21 days, rather than one month, prior to the formal introduction into Parliament.

N2>1. That the Constitutional Amendment (Provincial Governments and Local-level Governments) Law 1995 (“Constitution Amendment”) was not passed in accordance with the requirements of the provisions of s 14 of the Constitution of Papua New Guinea in that:-

N2>2. That the Organic Law on Provincial Governments and Local-level Governments Law 1995 (“Organic Law”) was not passed and or enacted in accordance with the requirements of Sections 12 and 14 of the Constitution of Papua New Guinea in that:-

(b) there was no debate on the merits of the proposed law contrary to Section 14 of the Constitution.”

Section 14(1) of the Constitution, cited at p 509 above, requires that there be “opportunity for debate on the merits” in relation to proposed laws to alter the Constitution or a proposed Organic Law. The section does not insist that there be debate but, rather, that an opportunity for debate is provided, and the section further elaborates as to when the opportunities for a debate must occur.

The applicant argues that no opportunity for such debate on the merits was given to the Members of the Parliament. Therefore, the Parliament was in breach of the s 14 of the Constitution. It is argued that, in fact, no debate on the merits had taken place either on 29 March 1995 or 27 June 1995. The submission by the applicant may be summarised and put into three categories:

It is said the Gazette containing the proposed laws was circulated on short notice; hence, members did not have enough time to properly prepare for the debate. It is also said that the first reading and the first vote were pushed through on short notice, which did not give sufficient time for debate. Further, it is said that the Prime Minister closed the first debate on the same day, which was undesirable. There was also, it is said, an attempt to gag the debate on 27 June 1995. The rush was such that the debate and the votes were taken without any report from the Permanent Parliamentary Committee on Justice.

It is said that the Prime Minister introduced the proposed laws on 28 March 1995 without notice, thereby taking the members by surprise. There was confusion among the members because the Prime Minister did not explain which of the bills they were dealing with. Some did not understand the difference between the two bills. The Members who spoke on 27 June 1995 still did not know which bill they were dealing with.

It is said that there was such an urgency that the Prime Minister did not allow sufficient time for the committee to report, and that he misled the Parliament that there was no report available.

It is argued that there wouldn’t have been any debate on the merits, given the fact of such short notice, and misinformation led to surprise, confusion, and the fact that the Members were ill-prepared for any debate.

The “two occasions” in s 14 is clarified by subsection (2); that is, “different meetings of the Parliament” separated by “at least two months”. The fact is that the “two occasions” requirement and the “at least two months” requirement were complied with. The Hansard Reports show that majority votes were expressed on 29 March 1995 and 27 June 1995. It is argued, however, that on 29 March there was no opportunity for debate on the merits, because the laws were introduced in the Parliament the day before, without notice.

The Hansard Report shows the Parliament commenced sitting at 10 am on 29 March 1995. After dealing with various ordinary business, the Prime Minister introduced the reform laws and said:

“Yesterday, I presented the Proposed Law to alter the Constitution, listed the constitutional Amendments (Provincial and Local Government) and enactment of an Organic Law on Provincial Government and Local-level Government.”

There was an interjection, then Mr Momis spoke. There was another interjection, which was ruled out of order, and then Mr Momis continued. Then Mr Jaminan spoke, followed by Mr Temo. Seven other Members of Parliament spoke, including Mr Haiveta and Mr Kaputin. On a vote of 79:10, the debate was concluded. After points of orders were taken, the proposed law was read a second time, and it was voted 93:3 in favour. The debate then continued on the Organic Law on Provincial Governments and Local-level Governments. Many Members sought clarifications; some raised points of order, and others debated. All in all, 29 Members spoke. The law was agreed to with a vote of 90:0 in favour.

On that day, the Parliament, after the prayers, was suspended to 2pm because of lack of a quorum. When it resumed, there were preliminary points raised relating to a report by the Committee on Justice. Then the Prime Minister introduced the reform bills for a second required reading. The first speakers were concerned with whether the debate might be closed earlier. Those who spoke on matters of substance spoke about amendments and financial implications. After the third reading, the vote was taken 86 to 15 in favour of the reform.

In the 29 March debate, some 29 members spoke. Some sought clarifications. In 27 June debate, comparatively few members spoke. Those who did speak talked about the financial implications of the reforms. Some said they were fully committed to the reforms in principle, but they asked for a delay to make certain amendments. Looking at both occasions, those who wanted to speak, did speak. Others voted when it came to voting. The results show that the support for the proposed constitutional amendment and the Organic Law was overwhelming. In the light of this, it is difficult to support an argument that no opportunity was given on both occasions for debates. It is obvious that those who wanted to talk, did talk. Others listened and voted at the end.

On all of that evidence, we are satisfied that, in fact, there was debate on the issues and that there was opportunity to debate on the merits.

N2>“B.2 That the Organic Law on Provincial Governments and Local-level Governments Law 1995 (“Organic Law”) was not passed and or enacted in accordance with the requirements of Sections 12 and 14 of the Constitution of Papua New Guinea in that:

(a) The Organic Law on Provincial Governments and Local-level Governments is not an “Organic Law expressly authorised by [the] Constitution” within the meaning of Section 12(1)(a) of the Constitution. That is, the Organic Law on Provincial Governments and Local-level Governments 1995 was purportedly passed pursuant to sections 187B and 187C of the Constitutional Amendment (Provincial Governments and Local-Level Governments) 1995 which was at the time a proposed law or still a ‘Bill’ and not yet a Constitutional Law.”

The substance of the applicant’s argument under this ground is that the Organic Law was passed by the Parliament without there being in force proper provision for the Organic Law, as required by s 12(1)(a) of the Constitution. Section 12(1)(a) requires that an Organic Law not be made by the Parliament unless provision for the Organic Law is expressly authorised by the Constitution. The procedure for the making of alterations to the Constitution and Organic Laws is provided for by s 14 of the Constitution. It is the applicant’s contention that the “constitutional amendment” which was supposed to provide for the “Organic Law” was still a proposed Law or a Bill, and not yet a Constitutional Law, when the “Organic Law” was “purportedly taken through under s 14 before the Parliament”. Thus, it is submitted that the Organic Law was not expressly authorised by the Constitution within the meaning of s 12(1)(a) of the Constitution. In plainer language, the applicant is contending that Parliament has put the “cart before the horse”, in that it sought to amend the Constitution by repealing and replacing Part VIA of the Constitution (dealing with provincial governments) to make provision for a new system of provincial governments and local-level governments and that, simultaneously, it sought to introduce a new Organic Law on Provincial Governments and Local-level Governments. It is said that such an Organic Law cannot become law under the procedures of s 14 of the Constitution until the Constitution is first amended to authorise and provide for such a new Organic Law (by s 12(1)(a) of the Constitution).

These submissions immediately raise the question of whether or not these are matters which are justiciable. Section 134 of the Constitution provides:

Except as is specifically provided by a Constitutional Law, the question, whether the procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable, and a certificate by the Speaker under Section 110 (certification as to making of laws) is conclusive as to the matters required to be set out in it.”

There has never been a definition of what is “procedures” or procedural in this context.

Firstly, it has been emphatically laid down that the settled practice is to refuse to grant relief in respect of proceedings within Parliament which may result in the enactment of an invalid law, and that the proper time for the Court to intervene is after the completion of the law-making process: see Hughes & Vale Pty Ltd v Gair [1954] HCA 73; (1954) 90 CLR 203; Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214 at 235; and per Gibbs J in Cormack v Cope (1974) 131 CLR 432 at 467.

The courts in the United Kingdom have traditionally refrained from any interference in the law-making activities of the Parliament. But in Papua New Guinea (and in Australia), the law-making process of the Parliament is controlled by a written Constitution. It has been pointed out by the Privy Council in unequivocal language in the case of Bribery Commissioner v Ranasinghe [1964] UKPC 1; [1965] AC 172, that where the law-making process of a legislature is laid down by its constituent instrument, the courts have a right and duty to ensure that that law-making process is observed: per Barwick CJ in Cormack v Cope (supra) at p 452 and further at p 453: “where the Constitution requires that various steps be validly taken as part of the law-making process .... the Court has a duty to see that the Constitution is not infringed and to preserve it inviolate ... it has the right and duty to interfere if the constitutionally required process of law-making is not properly carried out.”

It is a firmly established principle that this Court may declare or treat as invalid any law of the Parliament made without the authority of the Constitution. The exercise of this authority includes the completion of the parliamentary process to turn a bill into an act. See also Victoria v The Commonwealth [1975] HCA 39; (1975) 134 CLR 81 at 92. Further, s 109 of the Constitution provides that the general law-making power of the Parliament is subject to the Constitution and the authority of SCR No 2 of 1982; Re Organic Law (supra) makes it quite clear that the requirements of s 14 of the Constitution are mandatory.

But whilst this Court has jurisdiction in matters involving the constitutionality of the law-making process, including the amendment of the Constitution itself, it does not have jurisdiction to enquire into what has been described as “intra-mural” deliberative activities of the Parliament or the intermediate procedures of Parliament. These are matters which are procedural of the proceedings of Parliament, and whilst there has never been a complete definition of this term, in its wider sense it has been used to include matters connected with, or ancillary to, the formal transaction of business in the Parliament: see Halsbury Laws of England (4th edn) vol 34 para 1486. The power to make the law, as it has emerged from the law-making process, is one thing, but the actual process of law-making is another thing.

In the present case, it is clear that the amendment to the Constitution and the Organic Law were “made” on 27 June 1995, when both completed their stages through the Parliament. That is proved by the Certificate of the Speaker of the National Parliament, issued under s 14 of the Constitution (which, by s 134 of the Constitution, is conclusive). It is also clear that the amendment to the Constitution (Constitutional Amendment No 16 - Provincial Governments and Local-Level Governments) was “made” first in point of time, and the new Organic Law was “made” immediately after. The amended provisions of Part VIA of the Constitution were in force on 27 June 1995, and they provided express authorisation for the new Organic Law. That authorisation begins with s 187A, which provides: “There shall be a system of Provincial Government in accordance with this Part”.

Part VIA provides for certain matters to be dealt with by way of Organic Law. Section 187A deals with “a system of Provincial Government” and the succeeding provisions make provision for various matters relating to the system of provincial government and provide for an Organic Law to spell out the detail of the matter.

Thus, there is only a requirement that there be “provision” for an Organic Law to deal with a matter. Since Organic Laws are themselves to spell out the detail, “provision” for which is made by the Constitution, there does not have to be a detailed statement providing for, or in respect of, a matter.

In our opinion, there has been no breach of s 12(1)(a) of the Constitution. As already indicated, the constitutional amendment was “made” on 27 June 1995 and the Organic Law on Provincial Governments and Local-level Governments was then “made”. As counsel for the respondents has submitted, a law is “made” when it has passed through all the required stages set out in the Standing Orders of the Parliament, and when it is “passed”, and before it is certified under s 110 of the Constitution. The making of a law is to be distinguished from the commencement of a law. The latter is the point at which the law becomes effective, in terms of its application. Under s 110 of the Constitution, the Speaker certifies that a law has been “made” by the Parliament. Clearly, therefore, a law is made prior to certification. There is no equivalent in Papua New Guinea to the position in the United Kingdom, where a law is not made until it receives the Royal Assent. The Parliament is the supreme law-making body, subject only to the Constitution, and the legislative power of the People is vested in the National Parliament (s 100 of the Constitution). There is no provision in the Constitution for the assent of the Head of State. Certification operates to bring a law into operation, rather than the making of the law.

Accordingly, in our opinion, the constitutional amendment had been made and passed and had become law, and that constitutional law properly and expressly gave authorisation for the new Organic Law on Provincial Governments and Local-level Governments. There has been no breach of s 12(1)(a) of the Constitution.

It follows from what has already been said that this Court does have jurisdiction in this matter, insofar as it is alleged that the constitutional requirements for the amendment of the Constitution had been breached. But insofar as it is argued that the manner of the passage of the amendments through Parliament breached parliamentary procedures, these are matters which involve the internal procedures of Parliament and are non-justiciable (s 134 of the Constitution).

In our opinion, there has been no breach of ss 12 or 14 of the Constitution, and we are satisfied that the amendments to the Constitution and the Organic Law are valid.

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Supreme Court of Papua New Guinea

In the Matter of Constitutional Validity of Constitutional Amendment (Provincial Governments and Local-Level Governments) [1995] PGSC 12; [1995] PNGLR 481 (20 September 1995)

PNG Law Reports 1995