Supreme Court Reference by the Western Highlands Provincial Executive [1995] PGSC 6; SC486 (20 September 1995)

Unreported Supreme Court Decisions

SC486

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SCR NO. 2 OF 1995
REFERENCE BY THE WESTERN HIGHLANDS PROVINCIAL EXECUTIVE

Waigani

Amet CJ Kapi DCJ Los Brown Sawong JJ
1 September 1995
19-20 September 1995

Counsel

Mr K Naru for the affirmative

Mr B Nanei for the negative

Mr J Baker for the negative

AMET CJ: This is a special reference under section 19 of the Constitution, brought by the Western Highlands Provincial Executive, an authority entitled to make application to the Supreme Court. The Reference seeks the Supreme Court’s advisory opinion on the constitutional validity of section 10 of the Organic Law on Provincial Governments and Local-level Governments.

The National Parliament had contemporaneously amended the constitutional provisions that provided for the Provincial Government system and replacing it with provisions for Provincial Governments and Local-level Governments system and at the same time repealing the Organic Law on Provincial Government and enacting a new Organic Law on Provincial Governments and Local-level Governments.

The constitutional amendment repealed the whole of part VI (A) and replaced it with a new part VI (A) entitled Provincial Governments and Local-level Governments. The principle relevant sections of this new part are the following:

187(A) Provincial Governments and Local-level Governments system.

There shall be a system of Provincial Governments and Local-level Governments for Papua New Guinea in accordance with this part.

187(B) A grant of Provincial Governments and Local-level Governments.

An Organic Law shall provide for, or make provision in respect of, form a manner of establishment of the Provincial Governments and the Local-level Governments.

187(C) Constitution, functions, etc: of Provincial Governments and Local-level Governments.

(1) Subject to this part, an Organic Law shall make provision in respect of the Constitution, powers and functions of a Provincial Government or a Local-level Government.

(2) For each Provincial Government and Local-level Government, there shall be established:

(a) An elective, or mainly elective, legislature with such powers as are conferred by law; and

(b) An executive; and

(c) An office of Head of the Executive.

(3) An Organic Law shall provide for the minimum number of members for the Provincial Assemblys and Local Level Governments and the maximum number of members that may be appointed as nominated members of Provincial Assemblies and Local Level Governments.

The Organic Law on Provincial Governments and Local Level Governments provided in the preamble that it was an Organic Law:

(a) To implement part 6 (A) (Provincial Governments and Local Level Governments) of the Constitution by making provision for and in respect of a system of Provincial Governments and Local Level Governments for the provinces pursuant to the second national goal (equality and participation) of the national goals and directive principles of the Constitution; and

(b) To repeal and replace the Organic Law on Provincial Government and for related purposes.

Under Division III section 5 (1) a system of Provincial Governments and Local Level Governments is hereby established.

Section 10. Provincial Government and Provincial Legislature

(1) A Provincial Government is hereby established for each province.

(2) A Provincial Legislature, to be known as the Provincial Assembly or by whatever local name is considered appropriate, is hereby established, for each Provincial Government.

(3) A Provincial Assembly shall consist of:

(a) all Members of the Parliament representing electorates in the province; and

(b) heads of the rural Local-level Governments in the province; and

(c) one representative to represent the heads of both urban authorities and urban councils in the province; and

(d) where the chieftaincy system is in existence and is accepted in a province paramount chiefs from the province not exceeding three in number or their duly appointed nominees, who shall be appointed by the Minister responsible for provincial government and local-level government matters on the recommendation of the Provincial Executive Council; and

(e) one woman representing women in the province appointed by the Provincial Executive Council on the nomination of the Provincial Council of Women; and

(f) such other members, not exceeding three in number, as the Provincial Assembly, may by law, appoint from time to time.

Four principle questions have been referred pertaining to these principal constitutional and organic law provisions. They are:

(a) Is Section 10 of the proposed Organic Law on Provincial and Local-level Governments inconsistent with Sections 187C (2) (a) of the Constitution, or, alternatively, with the proposed Section 187C (2) (a) of the Constitution of the Constitution contained in Section 5 of the proposed Constitutional Amendment (Provincial Governments and Local-level Governments) law, in that to the extent that the said Section 10 provides for a provincial legislature to be made up of:

(i) Persons holding office in the provincial legislature ex officio, by virtue of their positions in other bodies, namely the Parliament and rural Local-level Governments; and

(ii) Persons appointed by the Minister responsible for Provincial and Local-level Government matters, the Provincial Executive Council and the Provincial Assembly; and

(iii) A representative of heads of urban authorities and urban councils, whose manner of selection for and taking up of the membership is not provided.

It does not meet the requirement that an Organic Law provide for ‘an elective, or mainly elective, provincial legislature’ or ‘an elective, or mainly elective, legislature, as the case may be?

(b) Is section 10 of the proposed Organic Law on Provincial and Local-level Government inconsistent with section 50 of the Constitution to the extent that it provides for members of the Provincial Legislature to hold office without being directly elected to the provincial legislature?

(c) Is section 10 of the Proposed Organic Law invalid in that it is not expressly authorised by the Constitution or by the proposed Constitutional Amendment, as required by section 12 (1) (a) of the Constitution?

(d) Where it is determined that a provision of a proposed law which has been supported on a division by the prescribed majority of votes in accordance with section 14 (1) of the Constitution is invalid, does that determination have the effect of:

(i) preventing further passage through the Parliament of the entire proposed law; or

(ii) permitting further passage through the Parliament of that proposed law other than the provisions determined to be invalid; or

(iii) permitting further passage through the Parliament of the proposed law, including the provisions determined to be invalid; or

(iv) amending the proposed law so as to delete the provisions determined to be invalid.

It should be noted at the outset that when the questions were referred and argued the amendments were proposals only but shortly after the completion of submissions the proposals were enacted by Parliament into law in the same form as the proposal without any amendment to them. The issues remain the same however as to whether or not the Organic Law section 10 is inconsistent with the constitutional section 187 (C) (2) (a).

In the course of submissions as to the interpretations to be ascribed to the amended sections 187 (C) (2) (a) and 5 and in the submissions pertaining to the ambit and scope of section 24 of the Constitution relating to use of certain materials as aids to interpretation, parties were directed to make additional submissions on the principles in determining whether the Court may resort to other extrinsic materials in addition to the materials referred to in s 24 in interpreting provisions of the amendments to the Constitution and the Organic Law.

Section 24. Use of certain materials as aids to interpretation.

(1) The official records of debates and of votes and proceedings:

(a) in the pre-Independence House of Assembly on the report of the Constitutional Planning Committee; and

(b) in the Constituent Assembly on the draft of this Constitution,

together with that report and any other documents or papers tabled for the purposes of or in connexion with those debates, may be used, so far as they are relevant, as aids to interpretation where any question relating to the interpretation or application of any provision of a Constitutional Law arises.

(2) An Act of the Parliament may make provision for the manner of proof of the records and documents referred to in Subsection (1).

(3) In Subsection (1), “the report of the Constitutional Planning Committee” means the Final Report of the pre-Independence Constitutional Planning Committee dated 13 August 1974 and presented to the pre-Independence House of Assembly on 16 August 1974.

Counsel for the referror, advocating the affirmative proposition to the questions, submitted principally that the specific and clear terms of s 24 was to allow use of materials referred to therein only and not to any other extrinsic materials not specifically included under s 24, in particular any reports, reading speeches and debates and other historical documents relating to subsequent amendments to provisions of the Constitution or Organic Laws. It was submitted that it would be easy for the Constituent Assembly to have inserted in s 24 reference to reports and debates on subsequent amendments as aids to interpretation of those amendments.

Counsel then made reference to Common Law Principles as to the use of extrinsic aids to statutory interpretation as has been adopted and applied in cases in this jurisdiction. It was submitted that in fact the Common Law Principles precluded reference to general documents on the enacting history of a law for the purposes of interpretation unless special circumstances existed where examining the proceedings in Parliament would almost certainly settle the matter immediately one way or the other. Be that as it may, it was submitted the Common Law exceptions should not be permitted because the Constitution itself by s 24 provides for the materials to be used as aids in interpreting the Constitution and that if other materials were required the Constitution would have stated so. In the absence of any such provisions the expressed provisions of the Constitution itself should be used.

Counsel representing the Constitutional Commission relied solely on the Common Law position which limited access to extrinsic material to reports of Commissions or Committees, other than Committees of Parliament, that could be referred to only for the purposes of:

(a) showing the mischief aimed at; and

(b) the state of the law as it was understood to be by the Legislature when this Statute was passed.

It was further submitted that the reasons given by the Court for not looking at extraneous materials include, the time and expense involved in the reading of all debates in Parliament, the difficulty of access to relevant materials by counsel, the possibility that instead of interpreting the provisions of an Act there would be an interpretation of the extraneous materials in place of the Act, possible attempts by the Legislatures through their speeches in the Parliament to try to influence any possible later interpretation of legislation by the Courts.

It was conceded that in this case the Constitutional Commission produce a first interim report in June 1994 which was presented to the Parliament. The Constitutional Commission, being established as a statutory body under the Constitutional Commission (2) Act 1993 was a Commission or Committee for the purposes of the Common Law Rule against extrinsic aids to interpretation, could be looked at under the Common Law exception to ascertain the mischief aimed at and the state of the law as it was understood by the legislature when the amendments were passed.

In fact, it was submitted, a consideration of that report of the Constitutional Commission shows that the Commission did not consider that the existing law at that time including s 187 (C) (2) (a), constituted any impediment to the establishment of Provincial Legislature composed of indirectly elected members.

Counsel representing the Principal Legal Adviser submitted by reference to case law, in particular Minister for Lands v William Robert Frame [1980] PNGLR 433 to the judgement of Pratt J at p. 488 that in Papua New Guinea Courts can consider Hansard reports in special circumstances in order to ascertain what was the mischief sought to be removed by passing a particular act, or amending a particular section to an existing act, if the meaning of the word is shrouded in ambiguity. The case of Rundle v Motor Vehicles Insurance (PNG) Trust [1987] PNGLR 44 and [1988] PNGLR 20 was relied on as sufficient authority for the proposition that Parliamentary debates in Hansard are very helpful to be considered to ascertain the intention and purpose of the enactment by Parliament.

In Minister for Lands v Frame (supra) at p 488-489 Pratt J made the following pertinent observations:

“Reference was made by counsel to the following authorities: Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] UKHL 2; [1975] 1 ALL ER 810; Warner v Metropolitan Police Commissioner [1969] 2 AC 256; Beswick v Beswick [1967] UKHL 2; [1968] AC 58 at p 105; and Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614 at p 624. Once again I do not propose to review the authorities, but draw attention to two only, starting with Lord Denning MR in Sagnata’s case (supra) of that report where his Lordship says: ‘We are, of course, entitled to look at the mischief which the Act was intended to remedy. I take it as described on second reading in the House of Commons by the Minister...’. And his Lordship then deals with a particular statement by the Minister in the Commons. The other reference I make is to the judgment of Lord Reid in Warner’s case (supra) (39):

‘...the layman may well wonder why we do not consult the Parliamentary Debates, for we are much more likely to find the intention of Parliament there than anywhere else. The rule is firmly established that we may not look at Hansard and in general I agree with it, for reasons which I gave last year in Beswick v Beswick (40). This is not a suitable case in which to reopen the matter but I am bound to say that this case seems to show that there is room for an exception where examining the proceedings in Parliament would almost certainly settle the matter immediately one way or the other.’ ”

The theme of these authorities is that one may examine the Debates of Parliament in special circumstances, in order to ascertain what was the mischief sought to be removed by passing a particular Act, or amending a particular section to an existing Act, if the meaning of the word is shrouded in ambiguity. Certainly there are difficulties in the way of defining the term “compensation” in the Lands Acquisition Act. I also take the view that the Act was passed to remedy a particular mischief which Parliament considered to exist at the time of the passing of the Act. The mischief, of course, was the considerable area of alienated land in parts of Papua New Guinea where land shortage had become of major concern. A reference to the Debates does indeed confirm this belief, and in my view also, assists in determining what was the meaning of the word “compensation” prior to September 1975.

I have considerable sympathy for the views propounded by Pearce in his Statutory Interpretation at Ch. 2, where he expresses some justified criticism at the somewhat hide-bound approach which courts have taken to the matter of statutory interpretation. The more liberal approach which has developed over the past few years was taken by his Honour Mr Justice Wilson in this Court, in a recent decision sub nom PLAR No. 1 of 1980 (41). I think the case presently before us is one that lends itself particularly to an adoption of the views expressed by his Honour in that case. He rejects the “literal” rule and states that “it is clear, therefore, that the Supreme Court has (and should accept) a special responsibility to assist in the development of our indigenous jurisprudence, adapted to the changing circumstances of Papua New Guinea”. There is duty vested by the Constitution in the national judicial system to develop the underlying law. That is a duty which cannot, and must not be avoided. However, I do not consider that this requirement is an open invitation to judges to engage in personal idiosyncrasy or forensic experimentation. To date the judges of this Court have resisted such a temptation and I do not propose to start. The emphasis, of course, is to develop the law, not to destroy that which is already in existence, produced as it is over many years as a result of dealing with every conceivable human frailty and deception. The Constitutional direction given to the courts is not an invitation to reject the combined recorded wisdom of centuries of common law judges, thereby causing the judicial process in Papua New Guinea to embark upon uncertainty. In an area where the location of the main reefs have been chartered with some accuracy, albeit for Papua New Guinea there are many blank spaces, I think that any venture into “shoal water” should be handled only with knowledgeable during lest any traveller who is fortunate enough to arrive back at his home port has little to show save a battered vessel, a dispirited crew and a confirmation that the reefs do indeed exist and the waters are dotted with many hazards. As I say, the emphasis is on development and not destruction, it is on steady logical and comprehensible evolution and not self-centred revolution.

In Minister for Lands v Frame (supra) Kapi J after referring to several English authorities on the question as to whether a Court may look at Hansard concluded it is appropriate to refer to Hansard to discover the intention of the House on the question of compensation, and then referred to passages in Hansard on the second reading of the Bill.

In the quotation above Pratt J also having referred to the English cases referred to the adoption of views expressed by Wilson, J in PLAR No. 1 of 1980 PNGLR 26 in which Wilson J rejected the literal rule and accepted that the Supreme Court has special responsibility to assist in the development of an indigenous jurisprudence adapted to the changing circumstances of Papua New Guinea. Pratt J also concluded that this was a duty vested by the Constitution in the National Judicial System to develop the underlying law which could not be avoided. His Honour Pratt J then also referred to the passages in the debates in Hansard to assist the Court in ascertaining what mischief was sought to be removed and what meaning should be given to the word in issue.

In the two Rundle cases before the National Court and the appeal case before the Supreme Court this proposition was affirmed by the Courts without any discussion.

My own view is that, in any question relating to the interpretation or application of any provision of a constitutional law, the primary aids to interpretation must be found in the Constitution itself. Reference to English and Australian Common Law principles of statutory interpretation may be referred to as persuasive guide only and adopted applied and enforced as part of the underlying law if no constitutional or statutory principles or aids to interpretation are available and only if they are applicable or appropriate to the circumstances of the country and not inconsistent with any custom pursuant to schedule 2.2 of the Constitution.

I also refer to the sentiments expressed by Kearney J in the State v The Independent Tribunal Ex Parte Sasakila [1976] PNGLR 491 at 506. His Honour said:

“The process of statutory interpretation is essentially intuitive and subjective, in the absence of rules consistently applied. The Act is a Constitutional Law and thus subject to the general principles of interpretation set out in Constitution ss 10, 25 (3), 63 (3) and Basic Social Obligation (a), and 158 (2); and to the more specific canons in Constitution ss 24, 109 (4) when read with 12, and Sch. 1.5. In my opinion these provisions amount to a direction to the Court that in carrying out its functions under Constitution s 18 (1) the words actually used in the Act do not have to be strictly adhered to but are to be construed with the assistance of the materials referred to in Constitution s 24, so as best to attain what Parliament intended. When Constitution ss 109 (4) and 158 (2) are themselves interpreted with the aid of s 24, this view is fortified: there are several references in Chapter 8 of the Report of the Constitutional Planning Committee which point against the Court taking a ‘narrowly legalistic’ or ‘literal’ approach,and thus sacrificing the ‘spirit for the letter of the Constitution’. The ‘dynamic character’ of the Constitution is emphasized; in interpreting the laws the judges are urged to use ‘judicial ingenuity’ in appropriate cases, to do justice. One consequence of this approach to interpretation is that the Court should not fail to give a provision the effect it considers the Parliament intended, by applying a literal or ‘plain meaning’ test nor should it attribute to the legislature an intention to produce a capricious or unjust result. The search throughout is for the intention of Parliament, a process which remains, formally at least, one of interpretation and not legislation, and one in which the best guide remains the provisions of the Act itself.”

The fundamental issue which seems to me not to have been addressed fully and decisively where questions relating to the interpretation or application of any provision of a constitutional law arises is when extrinsic materials as prescribed in s 24 maybe used as aids to interpretation. Does the Constitution including the aids to interpretation direct and require that in every question relating to the interpretation or application of any provision of a constitutional law, recourse and reference should be made to all relevant aids to interpretation including s 24 aids? Or does the Constitution and the aids to the interpretation of Constitution intend that interpretation of provisions of the Constitution will begin by a detailed and literal study of the words used first and turning to some deemed intention of the legislature only in case of verbal ambiguity or internal conflict? The secondary series of questions that would arise from these issues depending on what conclusion might be reached are; (a) whether recourse can be had to aids to interpretation at all and if so to what materials and aids and thirdly for what purpose.

It seems to me from the body of precedents of this court heeded for the approach appears to be that which adheres some to the Common Law approach to the statutory interpretation. It seems eminently clear to me that the very heavy reliance and reference to English and Australian Common Law cases on statutory interpretation has embedded and entrenched the Common Law limitations to access to reports of non Parliamentary Commissions or Committees only for the limited purposes of showing the mischief aimed at the state of the law as it was understood to be by the legislature when the Statute was passed. It seems to me that only in these exceptional circumstances that the Papua New Guinea precedents that have allowed reference to Hansard debate have been permitted to be referred to. It seems also that these Common Law limitations to ordinary statutory interpretations have been extended to apply to the task of interpreting and applying provisions of constitutional laws.

It is now my considered view that in order to fully discern the spirit of the constitutional framers and their intention to be ascribed to the particular provisions and expressions in issue and to approach the task of giving correct meaning to the constitutional law provisions the judicial mind needs first to be enlightened by a comprehensive examination of all the related and relevant provisions of the constitutional law including all the relevant aids to interpretation. I believe that it is imperative that every time any question arises as to the interpretation or application of any provision of a constitutional law that to fairly and correctly ascribed intention meaning and interpretation to that particular law or provision that the whole body of aids to interpretation that is relevant should be referred to. This it seems to me would ensure that the duty vested by the Constitution to develop the underlying law is fully accorded. This would also ensure, I believe, that the Constitutions directive and aspirations would be realised and continued reference to and reliance upon Common Law precedents and principles would begin to diminish and take the place of being persuasive aids only and not authoritative precedents.

Returning then to the secondary questions that arise as to whether recourse can be had to other materials at all, the answer, in my view, quite simply is that recourse, reference and reliance should be had to aids to interpretation every time questions arise relating to the interpretation or application of any provision of a constitutional law. Secondly as to what materials, primarily all relevant materials referred to and enabled by the Constitution.

The issue that remains and which I now return to is this; in the special cases of subsequent amendments such as in these provisions in issue whether aids to interpretation are to be found only in s 24 and other provisions referred to or can other historical reports and materials relevant to the amending legislation be referred to as well.

The court had to make a preliminary ruling in order that if it were decided that other materials in addition to s 24 materials could be referred to, the court needed to advise the parties what those additional materials were to be, for the parties to agree to tendering the same for the court’s use. The court did in fact rule that additional documents apart from the s 24 materials could be referred to by the court in order to assist the court in the task of interpreting and applying the provisions of the challenged constitutional laws. This was advised to all the parties and the additional materials were supplied to the court. These were the interim report of the Constitutional Commission which was tabled in Parliament and the three reading speeches to be found in Hansard. The parties by consent have tendered the interim report of the Constitutional Commission plus the second and third reading speeches embodied in the relevant volumes of Hansard reports of Parliament’s proceedings. I now give my reasons for deciding that this court can have access to and recourse to materials other than referred to in s 24 and in particular the historical reports and reading speeches of subsequent amendments to the Constitution.

Section 24(1) - provides for the official records of debates and of votes and proceedings:

(a) In the pre-independence House of Assembly on the report of the Constitutional Planning Committee; and

(b) In the Constituent Assembly on the draft of this Constitution,

together with that report and any other documents or papers tabled for the purposes of or in connection with those debates, may be used, so far as they are relevant, as aids to interpretation where any question relating to the interpretation or application of any provision of a constitutional law arises.

It seems to me on the reading of this particular subsection and paragraphs that the materials that could be referred to; the official records of debates and the votes and proceedings in the pre-independence House of Assembly on the Report of the Constitutional Planning Committee and in the Constituent Assembly on the draft of this Constitution, together with the CPC Report and any other documents or papers tabled for the purposes of or in connection with those debates as far as they are relevant. Quite obviously then to my mind those official records of debates and votes and proceedings in the pre-independence House of Assembly on the report of the CPC and in the Constituent Assembly on the draft of the Constitution for the purposes of those debates would have no direct relevance generally to interpretation of provisions of subsequent constitutional law amendments.

Clearly, in my view, by extension of the rationale of this particular set of records of debates and votes and proceedings, the official records of debates and the votes and proceedings and any other documents or papers or reports tabled for the purposes of and in connection with those debates relating to proposed amendments subsequent to the adoption of the Constitution are entirely relevant as aids to questions relating to the interpretation or application of any of the provisions of the subsequent constitutional amendments or laws. Just as this provision of s 24 is necessary aid to the interpretation of provisions of the Constitution as adopted, so should similar records or debates and the votes and proceedings plus reports and other documents or papers tabled for the purposes of or in connection with those debates in relation to subsequent proposals and amendments to the Constitution.

Another factor which affirms my conclusion that all aids to interpretation refer to in s 24 and elsewhere in the Constitution are to be referred to in all questions relating to the interpretation or application of any provision of a constitutional law and not only when there is some deemed ambiguity or uncertainty: this is to be found in the words of s 24 (1). The section does not qualify as to when this aids to interpretation may be used, it only says so far as they are relevant where any question relating to interpretation and application of a provision of a constitutional law arises. It seems to me to be in imperative terms that in every question relating to the interpretation or application of any provision of a constitutional law than this aids to interpretation may be used so far as they are relevant. It may well be argued that the expressed may be used suggest some discretion and option, but for the reasons I have advanced I prefer to consider that it is to be a necessary exercise of interpretation or application of a provision of a constitutional law.

As I had briefly stated above I do not believe that the Common Law limitations as to access and recourse to extrinsic materials as aids to interpretation of a constitutional law is relevant. I believe this Constitution is sufficiently comprehensive and conclusive as to all the aids to interpretation deemed necessary by the founding fathers. This include fundamentally the national goals and directive principles found in part 3 and the preamble to the Constitution.

QUESTION 5 (A)

The contention on behalf of the affirmative case is that s 10 of the Organic Law on Provincial and Local-level governments is inconsistent with s 187 (C) (2) (a) of the Constitution as amended. It was submitted that by reference to materials referred to in s 24, as aids to interpretation, in particular the final report of the Pre-Independence Constitutional Planning Committee, the establishment of provincial governments as prescribed by s 10 of the Organic Law becomes inconsistent with s 187 (C) (2) (a) of the Constitution. In particular it was submitted that the manner in which Provincial Assemblies are now prescribed to be constituted is inconsistent with the requirement of s. 187 (C) (2) (a) that the provincial government be “an elective, or mainly elective, legislature”. It was further submitted that the word “elective” by definition means “appointed by election”. Under s 10 of the Organic Law there would be no appointment to the provincial legislature by election as envisaged by the Constitution.

Further assistance was sought to be had by the affirmative case, by reference to the repealed s. 187 (C) (2) (a) which is in the following terms:

“For each provincial government, there shall be established:

(a) an elective or mainly elective, provincial legislature with such powers are conferred by law.”

It was argued that because the repealed provision was in almost identical terms, and by reference also to the materials referred to in s. 24, as aids to interpretation, particularly the Final Report of the Constitutional Planning Committee, the meaning to be ascribed to the word “elective” must mean “directly appointed by election”. Consequently, to establish and constitute a provincial assembly by the manner proposed by s. 10 of the Organic Law which is other than by direct election in inconsistent with the intention of s. 187 (C) (2) (a). The Final Report of the Constitutional Planning Committee was referred to at length to support this construction to be given to the word “elective” in s. 187 (C) (2) (a) of the repealed provision as well as the amended provision.

It was submitted therefore that by extension the term “elective” in the amended provision should also be interpreted to mean appointment by direct election. It was submitted that from the provisions of the Constitutional Planning Committee Report it was clear that the intention behind the repealed s. 187 (C) (2) (a) is for provincial legislatures to be constituted by representatives who are directly elected by the people.

Further support was sought to be gained by reference to the Second National Goal and Directive Principle of Equality and Participation; sub-goals (1), (2), (6), (8) & (9) as well as paragraph (b) of the Basic Rights and paragraphs (b) and (c) of the Basic Social Obligations.

For the Constitutional Review Commission, arguing the negative position, it was firstly submitted that it was inherently unlikely that the Constitution would restrict the nature and composition of a provincial legislature to only directly elected membership as contended for by the affirmative. By reference to s. 19 of the Constitution where the expression “elective legislature” is used it was submitted that this and other provisions of the Constitution supported a wide interpretation of s. 187 (C) (2) (a) because this expression included both elected and nominated members, whereas if direct election only were permitted then the section would have so provided specifically as the Constitutional Planning Committee recommended. It was further submitted that the CPC Report cannot be relied upon for this construction because the expression direct elections had not been adopted by the Constitution.

It was further submitted that the composition of the provincial legislature under the new regime is mainly elective in the sense of having a preponderance of members who are members by virtue of having been elected to public office either as members of the National parliament or as Heads of Rural and Urban Local-level governments also by an elective process. In that sense therefore the representative of the people in the provincial legislature were elected by the same people of the particular constituency of the province. The legislation as a whole gives effect to the Constitution and section 10 of the Organic Law has the effect of bringing together at the provincial level, national and rural and urban elected representatives.

Counsel for the Principal Legal Adviser also in support of the negative position submitted principally that there is no inconsistency between s 10 of the Organic Law and s. 187 (C) (2) (a) of the Constitution as amended. It was submitted that s. 187 (C) (2) (a) does not envisage “directly elected representatives” to constitute a provincial assembly. It was added that all that that section requires is either elected or mainly elected representatives, and that s. 10 does provide for elected representatives who are concurrently to represent the same constituencies in the National Parliament as well as elected representatives in the Local-level government who are the heads of that government. This, it was submitted sufficiently satisfies or complies with the requirement for “mainly elective” provincial legislature.

DECISION

Prima Facie it would appear that by reference to the comprehensive recommendations of the Constitutional Planning Committee on the form of the provincial government system, the repealed s. 187 (C) (2) (a) and the existing provincial government system which is established by mainly directly elected members, that the interpretation and application of the repealed s. 187 (C) (2) (a) should also mean a directly elected provincial legislature. However, the correct interpretation to be ascribed to the amended s. 187 (C) (2) (a) in my view, is not quite so simply and straight-forward as counsel for the affirmative would suggest. Firstly, for the reasons that I have given for the decision of the Court to have access to and refer to the historical Report of the Constitutional Review Commission presented to parliament, as well as the reading speeches and debates in Parliament in relation to the amendment, so far as they are relevant, as aids to interpreting the amended constitutional law provision, the materials referred to in s. 24 are generally irrelevant.

The s. 24 materials were relevant to the interpretation or application of provisions of the Constitution as adopted by the Constituent Assembly, but in logic would not have any meaningful relevance to the historical basis for any subsequent amendments to the Constitution. For the reasons I have given earlier it is eminently sensible to refer to any reports and documents or papers tabled for the purposes of or in connection with debates and the relevant reading speeches that preceded the enactment of the amending law.

And so, although on the face of the substantially identical terms of s. 187 (C) (2) (a) the interpretation to the vital expressions elective or mainly elective may appear to be the same, yet it is important to refer to the current historical documents as aids to interpretation in order to understand the full purpose and basis for the proposed law which would assist in giving proper purpose and meaning to these specific words or expressions in question. Such reference to the current historical documents and debates and reading speeches would also assist in educating the judicial mind to understand the basis for the proposed law relative also to what the law was at the time and what was intended to be achieved by the proposed law. In so doing the process of interpreting and applying particular phrases and expressions obtain broader based meaning which would be far more likely to obtain the meaning and purpose that the legislature in fact intended.

The interpretation in this particular case to be accorded the amended s. 187 (C) (2) (a) is in a rather more unique position than in normal amendments. The unique circumstances of the two provisions under consideration are that the principal enabling constitutional provision was amended as well as the subordinate operational law and provision in the Organic Law having been contemporaneously enacted to give effect to the principal enabling constitutional amendment. I consider therefore that the two pieces of constitutional laws have to be read together to ensure that the purposes and meaning to be ascribed to one or the other and or both is rendered consistent to reflect what is discerned and identified to be the true intention of the legislature. For these reasons therefor it is not practically sensible to approach the task of interpretation of the principal enabling constitutional provision in isolation of the subordinate operational Organic Law provision or provisions.

I consider therefore that the new regime as intended by Parliament, prescribed in s.10 of the Organic Law on Provincial Governments and Local-level Governments ought to be examined contemporaneously with s. 187 (C) (2) (a) in order to ensure that the interpretation to be accorded to each of them is rendered consistent and in conformity with what is discerned to be true intention of Parliament.

The unique feature of these two constitutional laws and the respective provisions under consideration is that they were both made contemporaneously with the principal purpose and intention of Parliament being to reform the current system. It seems to me to be quite imperative therefore in the task of interpretation and application to read the two pieces of constitutional laws together to render harmony and consistency with the spirit and intention with which Parliament enacted them. It must therefore be stated at the outset that Parliament must have intended unequivocally that the regime intended by the constitutional amendment s. 187 (C) (2) (a) to be implemented by the Organic Law on Provincial Governments and Local-level Government, in particular Part II Division I, Section 10 is for the enabling provision and the implementing provisions to be harmonious and consistent.

The preamble to the Organic Law states, consistently with this, that it is “an Organic Law to implement Part IV A (Provincial Governments and Local-level Governments) of the constitution by making provision for and in respect of a system of Provincial Governments and Local-level Government for the provinces pursuant to the second national goal (equality and participation) of the National Goals and Directive Principles of the Constitution, the enabling s. 187 (C) (2) (a) of the and the implementing provision s. 10 of the Organic Law ought to, so far as is reasonably possible, be given their fair and liberal meaning: (Sch. 1.5) consistent with the discerned intention of Parliament.

I consider therefore that by reference to the historical Report of the Constitutional Review Commission, the reading speeches and the debates of Parliament in relation to the amendments as contained in Hansard, the meaning to be fairly and liberally ascribed to s. 187 (C) (2) (a) is that the establishment of the provincial legislature is not restricted to directly elective representatives. I am satisfied that the scheme by which the provincial assembly is intended to be constituted under s 10 is as still mainly “elective”. The heads of Local-level Government Councils and the Members of National Parliament are contemporaneously elected by the same constituency. In my view they are not any less elected by the people than if they were quite separately to have been elected to that provincial government assembly.

I do not consider that it is wrong in principle to have the one person holding several public offices concurrently by virtue of the one elective process. In this new regime the constituencies have the opportunity to simultaneously elect one person to two public representative political offices. And the constituencies are fully aware of the process, that is when the elections are being conducted concurrently they would know that in electing a candidate to the Local-level government, the President or Head of the Local-level Government would be virtue of that office also represent his people on the provincial legislature. Similarly, in the same simultaneous election for the National Parliament the constituents would also know that the candidate of their choice who is elected as their National Parliament representative, would also concurrently be their representative on the provincial legislative. And so once the new elective process has begun, the constituents would know that in casting their vote for a certain candidate for the Local-level government and the National Parliament that those respective candidates may be their representatives on the provincial legislature, as well.

I am satisfied that it was not Parliament’s intention that s. 187 (C) (2) (a), though it is in substantially identical terms to the repealed section, required that the establishment of provincial government should be exclusively by direct election. It is manifestly evident from the historical report and reading speeches and debates by Parliament that in enacting s. 187 (C) (2) (a) in substantially identical terms to the repealed section and enacting a new regime under the Organic Law, that it did not consider that the terms of the amended s. 187 (C) (2) (a) constituted any impediment to the establishment of provincial legislatures in the manner prescribed by the Organic Law s. 10.

Section 10 of the Organic Law on Provincial Governments and Local-level Governments is therefore not inconsistent with s. 187 (C) (2) (a) of the Constitution.

QUESTION 5 (B)

Is s. 10 of the (Proposed) Organic Law on Provincial and Local-level Government inconsistent with s. 50 of the Constitution to the extent that it provides for members of the provincial legislature to hold office without being directly elected to the provincial legislature?

Section 50. The Right to Vote and Stand For Public Office

(1) Subject to the expressed limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age...has the right, and shall be given a reasonable opportunity:

(d) to vote for, and to be elected to, elective public office at genuine, periodic, pre-elections.

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

The issues raised by this question is whether the manner of establishing and constituting the provincial assembly as prescribed by s 10 of the Organic Law may be seen as a regulation of the right guaranteed by s. 50 of the Constitution. If this were ruled to be so, whether that regulation is reasonably justifiable for that purpose in a democratic society.

My short answer to this question is that the issues do not arise for consideration, in the light of my judgment that s. 10 is not inconsistent with the foundation enabling provisions of the Constitution, s. 187 (C) (2) (a). The right to vote for and to be elected to elective public office at genuine, periodic, free elections is not in any way restricted or regulated in an unreasonable manner. The citizens right to vote and stand for public office guaranteed under s. 50 is not in any way unreasonably regulated or restricted by the new regime proposed under Organic Law. The combined effect of s. 187 (C) (2) (a) of the Constitution and s. 10 of the Organic Law still fully allow citizens to vote in the single joint election process of two concurrent public offices simultaneously. Individual citizens are still at liberty to nominate and stand for election to possibly two public offices in the one process and citizens are still fully able to exercise their rights to cast their votes for candidates of their choice.

Section 50 is not determinative of any particular mode of voting for public office nor indeed of any particular public office. It does not specifically prescribe that the right to votes shall be exercised in a particular manner, nor does it prescribe that the right to nominate to stand for election to public office shall be for a particular level of public office. The public offices for which citizens may nominate to be elected to and for which citizens may be permitted to cast their votes is to be determined by the Constitution itself. The legislature has determined that the particular public office of provincial legislature is to be established and constituted in a particular form and manner and by particular categories of offices to be elected in a particular manner. And as long as the citizens right to then stand for that public office is preserved and the right of citizens also to cast their votes to elect candidates for that particular public office is also preserved then the s. 50 right is not infringed in any way.

The end result therefore is that the combined effect of constitutional amendment s. 187 (C) (2) (a) and the new Organic Law s. 10 quite adequately enable and facilitate the exercise of these rights and so the issues as to whether or not the new regime regulates the exercise of those rights in unreasonable fashion does not arise at all for consideration.

QUESTION 5 (C)

Is s. 10 of the (proposed) Organic Law invalid in that it is not expressly authorised by the Constitution or by the (proposed) Constitutional Amendment, as required by s. 12 (1) (a) of the Constitution?

Section 12. Organic Laws

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

(a) For or in respect of a matter provision for which by way of an Organic Law is expressly authorised by this Constitution.

Section 187 (B) provides that:

An Organic Law shall provide for, or make provision in respect of the form and the manner of establishment of the Provincial Governments and the Local-level Governments.

Section 187 (C) (1) provides that:

“Subject to this part an Organic Law shall make provision in respect of the Constitution, powers and functions of a Provincial Government or a Local-level Government.”

The Organic Law on Provincial Governments and Local-level Governments is quite clearly enabled by these provisions of the Constitution. Section 10 is also specifically enabled by these two provisions as being in respect of the form and manner of establishment and the constitution of the Provincial Governments. More specifically s. 187 (C) (2) (a) as ruled upon in Question 5 (a) renders s. 10 to be valid in prescribing the manner of establishing and constituting the provincial legislature. The Constitutional amendment was passed before the Organic Law was made law.

QUESTION 5 (D)

Having answered Question 5 (a) in the negative, this question does not require any further consideration.

KAPI DCJ: This is a special reference made by the Western Highlands Provincial Executive (hereinafter referred to as the “Provincial Executive”) under s. 19 of the Constitution.

Counsel representing the Attorney-General raised a preliminary issue with respect to the competency of the reference alleging that there was no evidence that the Provincial Executive passed a resolution to refer the questions under s. 19 of the Constitution. Counsel for the Provincial Executive filed an affidavit by the Premier in which he deposed that the Provincial Executive had passed such a resolution on 21 March 1995. Counsel for General Review Commission advised the Court that he was satisfied with this and would not join in the preliminary objection to the competency of the reference. I would have thought that this was sufficient. However, Counsel for the Attorney-General required a copy of the resolution of the Provincial Executive. Counsel for the Provincial Executive undertook to provide a copy of the resolution to Counsel. This resolution has since been provided.

When the Constitution came into force as at Independence, the provisions relating to Provincial Government were omitted. Apparently, the debates in the Constituent Assembly reveal that the members were concerned that they should not introduce a new level of government at the time of Independence and they considered that it would cost a lot of money to run an added level of government at that time. For these reasons the members voted to omit the provisions on Provincial Government.

However, the Provincial Government system was established by Constitutional Amendment No. 1 in 1976. Section 187C of the Constitution sets out the different arms of the Provincial Government; a Provincial Legislature, a Provincial Executive and the Head of Provincial Executive.

In relation to the legislature, s 187C (2) (a) provides:

“(2) For each provincial government, there shall be established:

(a) an elective, or mainly elective, provincial legislature with such powers as are conferred by law.”

In accordance with this provision, the Organic Law on Provincial Government which came into operation on 1 April 1977, under s. 16 sets out the composition of the legislature. It provides for no less than 15 elected members and three others who may be nominated or appointed or alternatively, 10% of the members of the Parliament for that particular province (whichever is the greater).

This provides for a “mainly elective, provincial legislature” in accordance with s. 187C (2) (a) of the Constitution. That is to say a legislature with more elected members than nominated or appointed members.

Recently, proposed laws have been placed before the Parliament to amend (a) the Constitution and (b) the Organic Law on Provincial Government.

In so far as it is relevant, the proposal to amend s 187C (2) (a) of the Constitution is as follows:

“187C. CONSTITUTION, FUNCTIONS, ETC, OF PROVINCIAL GOVERNMENTS AND LOCAL-LEVEL GOVERNMENTS

(1) Subject to this Part, an Organic Law shall make provision in respect of the constitution, powers and functions of a Provincial Government or a Local-Level Government.

(2) For each Provincial Government and Local-Level Government, there shall be established:

(a) an elective, or mainly elective, legislature with such powers as are conferred by law; and

(b) an executive; and

(c) an office of head of the executive.

An Organic Law shall provide for the minimum number of members for Provincial Assemblies and the Local-Level Governments and the maximum number of members that may be appointed as nominated members of Provincial Assemblies and Local-Level Governments.

(4)...”

This proposal retains the same wording as the existing section. The only substantive change is that it has included “Local-Level Government” as a new level of government to be regulated by the same requirement “elective, or mainly elective legislature”.

However, major changes have been proposed to repeal the Organic Law on Provincial Government and to replace it with a new Organic Law on Provincial Government and Local-Level Government. The relevant provision in the proposed law for consideration is Section 10 which is in the following terms:

“10. PROVINCIAL GOVERNMENT AND PROVINCIAL LEGISLATURE

(1) A Provincial Government is hereby established for each province.

(2) A provincial legislature, to be known as the Provincial Assembly or by whatever local name is considered appropriate, is hereby established, for each Provincial Government.

(3) A Provincial Assembly shall consist of:

(a) all Members of the Parliament representing electorates in the province; and

(b) heads of the rural Local-level Governments in the province; and

(c) one representative to represent the heads of both urban authorities and urban councils in the province; and

(d) where the chieftaincy system is in existence and is accepted in a province, paramount chiefs from the province not exceeding three in number or their duly appointed nominees, who shall be appointed by the Minister responsible for provincial government and local-level government matters on the recommendation of the Provincial Executive Council; and

(e) one woman representing women in the province appointed by the Provincial Executive Council on the nomination of the Provincial Council of Women; and

(f) such other members, not exceeding three in number as the Provincial Assembly may by law, appoint from time to time.

(4) An Act of the Parliament shall make provision for the qualifications and disqualifications of the members referred to in Subsection (3) (f).

(5) The members referred to in Subsection (3) (d), (e) and (f) shall have full voting powers and shall be counted towards the quorum of a Provincial Government.”

The following questions have been referred to determine the validity of the proposed laws:

“5(a) Is Section 10 of the proposed Organic Law on Provincial and Local-level Governments inconsistent with Sections 187C (2) (a) of the Constitution, or, alternatively, with the proposed Section 187C (2) (a) of the Constitution contained in Section 5 of the proposed Constitutional Amendment (Provincial Governments and Local-level Governments) law, in that to the extent that the said Section 10 provides for a provincial legislature to be made up of:

(i) Persons holding office in the provincial legislature ex officio, by virtue of their positions in other bodies, namely the Parliament and rural Local-level Governments; and

(ii) Persons appointed by the Minister responsible for Provincial and Local-Level Government matters, the Provincial Executive Council and the Provincial Assembly; and

(iii) A representative of heads of urban authorities and urban councils, whose manner of selection for and taking up of membership is not provided.

It does not meet the requirement that an Organic Law provide for ‘an elective, or mainly elective, provincial legislature’ or ‘an elective, or mainly elective, legislature, as the case may be?

(b) Is section 10 of the proposed Organic Law on Provincial and Local Level Government inconsistent with section 50 of the Constitution to the extent that it provides for members of the Provincial Legislature to hold office without being directly elected to the provincial legislature?

(c) Is section 10 of the Proposed Organic Law invalid in that it is not expressly authorised by the Constitution or by the proposed Constitutional Amendment, as required by section 12 (1) (a) of the Constitution.

(d) Where it is determined that a provision of a proposed law which has been supported on a division by the prescribed majority of votes in accordance with section 14(1) of the Constitution is invalid, does that determination have the effect of:

(i) preventing further passage through the Parliament of the entire proposed law; or

(ii) permitting further passage through the Parliament of that proposed law other than the provisions determined to be invalid; or

(iii) amending the proposed law so as to delete the provisions determined to be invalid.”

QUESTION 5 (A)

The reference was argued on 1 June 1995 when the proposed laws had not yet become law but had reached the second reading stage.

The Court recalled counsel to argue further issues on 19 June 1995.

Before the Court had any opportunity to consider its decision, the National Parliament passed the proposed laws on 27 June 1995. The effect of this is this that the proposed laws have now been passed by the Parliament. These laws have been certified and are now effectively in force. We are, therefore, no longer considering the validity of a proposed law, but validity of a law namely, the new Organic Law on Provincial Government and Local Level Government as against the new s 187C (2) (a) of the Constitution.

As I have noted earlier, the new s 187C (2) (a) of the Constitution is no different to the repealed section except that a new level of government, namely, Local-Level Government has been made subject to the same requirement of “elective, or mainly, elective legislature”. The arguments that have been put to us remain the same on both sides of the questions.

The words that need to be interpreted under s 187C (2) (a) are “elective, or mainly elective, legislature”. The next issue is to consider whether the legislature that is established by s. 10 of Organic Law on Provincial Government and Local-Level Government is an “elective, or mainly elective, legislature” within the meaning of s. 187C (2) (a) of the Constitution.

In view of the fact that the words that need to be interpreted remain the original words in the Constitution, the Court should seek to give meaning to these words as were intended by the framers of the Constitution and then seek to enquire whether the same words have changed their meaning by amendments made to other provisions of the Constitution.

ORIGINAL MEANING AS INTENDED BY THE CONSTITUTION

Counsel for the Provincial Executive submitted that the word “elective” should be interpreted to mean that members of the provincial legislature should be directly elected to that body. This means that elections should be conducted for the legislature in accordance with the law. He submitted that this is the ordinary and natural meaning of the word and should be given effect to.

Furthermore, he submitted that if the word “elective” is capable of more than one meaning, this can be resolved in favour of the natural and ordinary meaning of the word by resorting to the Constitutional Planning Committee Report, the Draft Constitution in the Constituent Assembly and the debates in the Constituent Assembly on the Report. The Court is directed to resort to these materials as an aid in the construction of the provisions of the Constitution by s. 24.

On the other hand, Counsel for the Attorney-General and Constitutional Commission both submitted that the word “elective” is to be given a liberal meaning and should include “direct election” by the people as well as “indirect election”.

It is settled law that the function of the courts in construing legislation is to discover the intent and the purposes of the legislature and give effect to them. The intent and the purposes of the legislature are expressed in the words used in legislation. The role of the court is to interpret those words. In doing this the courts have developed different rules of construction. One of these rules is the “literal approach”. That is to say giving words their ordinary and natural meaning. This rule of construction is merely common sense and judicial experience applied to the task of giving meaning to words used by the draftsman within the context in which the words are used.

This rule of construction does not always apply in every situation. There may be cases where the words used in legislation do not have a natural and ordinary meaning or the words are ambiguous. The courts have developed the “purposive approach” to resolve this difficulty (see for example PLAR No 1 of 1980 [1980] PNGLR 326.)

In this case, I agree with Counsel for the Provincial Executive that the word “elective” is used in the ordinary and the natural meaning of that word to mean a legislature that is appointed or established by a process of direct election by the people for that level of government, namely, provincial legislature. However, I am not content to rest my opinion on that basis alone.

Our Constitution has established its own ground rules for construction and should be examined and applied.

Sch 1.5 (2) provides:

“all provisions of, and all words, expressions and propositions in a Constitutional Law shall be given their fair and liberal meaning.”

However, this provision and other rules of construction under Schedule 1 are subject to Sch. 1.1 (1):

“The rules contained in this Schedule apply, unless the contrary intention appears, in the interpretation of the Constitution and of the Organic Laws.” (emphasis added).

It would be correct to interpret the word “elective” with a liberal meaning to include the meaning “indirect election” under Sch. 1.5 (2) of the Constitution. The question is, whether, there is a contrary intention in the Constitution to interpret the word “elective” to the exclusion of the meaning “indirect election” as contended for by Counsel for the Provincial Executive.

In performing this task, the Court may call in aid other rules of interpretation in the Constitution. The first one for consideration is Sch 1.5 (5). The Constitution is to be read as a whole. In attempting to interpret the word “elective”, the Court should look to the use of the same word or words which are from the same root word in the Constitution. The one that comes to mind is s. 99 which describes the National Parliament as “an elective legislature”. In s. 101 the Parliament is prescribed as a single-chamber legislature, consisting of:

“(a) a number of members elected from single-member open electorates; and

(b) a number of members elected from single-member provincial electorates; and

(c) not more than three nominated members, appointed and holding office in accordance with Section 102 (nominated members).” (emphasis added).

Clearly the word “elective” in relation to the Parliament cannot be interpreted to include the meaning “indirect election”. Similarly, the word “elected” in s. 101 cannot include the meaning “indirectly elected”. It is the clear intention of the Constitutional fathers that the Parliament shall consist of members who are “directly elected”. Sections 105 and 106 of the Constitution provide for general elections and by-elections for the Parliament. This can only mean “direct elections”.

Mr Baker sought to argue that the word “elective” in s. 99 includes “elected members” under s. 101 (a) and (b) as well as (c) who are “nominated members’. Therefore, he further submitted that the word “elective” include “nominated members”. This is clearly wrong. Section 101 does not seek to define what “an elective legislature” is under s. 99. It simply sets out the category of members. The “elective legislature” can only mean the elected members under s. 101 (a) and (b). This category of members cannot be nominated. It does not and cannot include nominated members. It is not necessary to have nominated members in the Parliament (s. 102 of the Constitution). Since Independence, no members have been nominated to the Parliament under this provision. It cannot be argued that of the 109 members of the Parliament, any of these members could be “indirectly elected”.

Therefore, in interpreting the same word “elective...legislature” in s. 187C (2) (a) it should be given a consistent meaning, namely a legislature “directly elected” by the people.

Perhaps the most helpful aid to establishing the real intention of the Constituent Assembly in determining the proper meaning of the word “elective” is to have regard to the Constitutional Planning Committee Report, the Draft Constitution before the Constituent Assembly and the Debates in the Constituent Assembly.

The common law principles deal with situations where a court may look at debates or other materials in construction of legislation. I have dealt with some of these principles in Minister for Lands v Frame [1980] PNGLR 433 at 462. See also Graeme Rundle v Motor Vehicles Insurance (PNG) Trust [1987] PNGLR 44.

For the present purposes, it is not necessary to resort to the common law principles. In interpreting the provisions of the Constitution, s. 24 enumerates the different documents a court may refer to in interpreting the Constitution. Kearney J in The State v The Independent Tribunal; Ex Parte Sasakila [1976] PNGLR 491 at 506 to 507 correctly stated the role of s 24 when he said:

“The process of statutory interpretation is essentially intuitive and subjective, in the absence of rules consistently applied. The Act is a Constitutional Law and thus subject to the general principles of interpretation set out in Constitution ss. 10, 25 (3) and Basic Social Obligation (a), and 158 (2); and to the more specific canons in Constitution ss. 24, 109 (4) when read with 12, and Sch 1.5. In my opinion these provisions amount to a direction to the court that in carrying out its functions under Constitution s. 18 (1) the words actually used in the Act to no have to be strictly adhered to but are to be construed with the assistance of the materials referred to in Constitution s. 24, so as best to attain what Parliament intended. When Constitution ss. 109 (4) and 158 (2) are themselves interpreted with the aid of s. 24, this view is fortified: there are several references in Ch 8 of the Report of the Constitutional Planning Committee which point against the Court taking a “narrowly legalistic” or “literal” approach, and thus sacrificing the “spirit for the letter of the Constitution”. The “dynamic character” of the Constitution is emphasized; in interpreting the law, the judges are urged to use “judicial ingenuity” in appropriate cases, to do justice. One consequence of this approach to interpretation is that the Court should not fail to give a provision the effect it considers the Parliament intended, by applying a literal or “plain meaning” test nor should it attribute to the legislature an intention to produce a capricious or unjust result. The search throughout is for the intention of Parliament, a process which remains, formally at least, one of interpretation and not of legislation, and one in which the best guide remains the provisions of the Act itself.”

The interpretation that should be given to a provision of the Constitution may be too obvious that it may not be necessary to turn to any of the aids set out in s. 24. However, in this case the parties contended competing meanings and involves consideration of important democratic principles of government for our people in Papua New Guinea and therefore in my view the Court should not engage in a process of reasoning of its own but should have regard to the materials set out in s. 24 and give due weight to those materials as directed by s. 24. To ignore these materials would be a serious breach of s. 24.

As to the use a court may make of these materials will vary from case to case. If the words used in the Constitution differ in substance to what was intended in the report or the debates, or the words of the Constitution are substantually amended, clearly the meaning or the intention set out in the report and the debates cannot be read into the provisions of the Constitution. Such materials can be used to reach a different meaning or intention. However, if the Constitution uses a word or an idea which is capable of having different meanings and which was fully discussed in the reports or the debates then such materials would be used to identify the real intended meaning in the Constitution.

The starting point is the Report of the Constitutional Planning Committee dated 13 August 1974 which was presented to the pre-Independence House of Assembly on 16 August 1974. At page 10/5 the Committee made the following report:

“43. We have demonstrated above how important it is that government should not only be decentralized but that it should also be brought under political control at the provincial level. We believe that it is vital that a body comprising directly elected representatives of the people should be established to exercise that control in each province. It should be called the ‘Provincial Assembly’.

44. The Provincial Assembly should be the legislative and policy-making body for each rovincial government. It should also have ultimate control over the performance of each provincial Government’s administrative responsibilities.

45. The Committee believes that the members of each Provincial Assembly should, in principle, be directly elected by the people. They should be answerable to the people at periodic elections.

46. At present, local government councils are represented on Area authorities. The people of the various districts are only indirectly represented. The councillors who sit on Area Authorities were chosen to represent their wards at council level. They were not chosen by the people to represent them at district level.

47. A person who is an acceptable representative at one level of government may be quite unacceptable at another. Holders of political offices at each level of government should be separately elected. It is only as a purely interim measure that we recommend that the Provincial Assembly of a State One provincial government may be indirectly elected, like an Area Authority, until the first provincial elections after the Constitution comes into force are held.

48. The Constitution should, we believe, make general provision for the establishment of a directly elected Provincial Assembly in each province. The detailed arrangements should be spelt out in ordinary legislation.”

A number of important principles are stated in these paragraphs. The first is that members of a Provincial Assembly should be directly elected by the people. In fact the Committee expressly discussed the concept of representation on the Area Authorities at the time. It pointed out that the people were indirectly represented on Area Authorities through representatives on local government councils. The Committee expressly rejected this kind of indirect representation on the provincial government legislature.

Coupled with the idea of direct election, the Committee discussed the idea of participation and representation at different levels of government. Representation at different levels require different elections. An election to one level of government does not necessarily represent the people in another level of government.

The Committee made recommendations to effect these principles. On page 10/32 the Committee made the following recommendation:

“7. The members of each Provincial Assembly shall be elected directly by the people of each province in the same way as members of the National Parliament.”

This recommendation speaks for itself.

The next relevant document to look at is the Draft Constitution which was considered in the Constituent Assembly. The relevant provision in this draft is s 192 (2) (a):

“(2) For each provincial government, there shall be established:

(a) an elective, or mainly elective, provincial legislature, with such powers as are conferred by law.”

The question is, whether, the draftsman in using the word “elective” substantially changed the meaning that was clearly intended by the CPC in its report and recommendations. The debates in the Constituent Assembly on these provisions are relevant. The relevant part is the speech given by Mr Michael Somare the then Chief Minister in introducing the provisions on Provincial Government of the Draft Constitution to the Constituent Assembly on 30 July 1975 where he said:

“This part of the Constitution says that for each provincial government there shall be a provincial legislature to make laws for the province and the members of the provincial legislature will be elected but some may be appointed.” (emphasis added).

This could only mean direct election as intended by the CPC and this passage clearly reflect the meaning that was intended for the word “mainly elective”.

Furthermore, there are other provisions when read as a whole, the Draft Constitution could only have intended direct elections. Section 194 of the draft dealt with suspension of provincial governments. The relevant parts are as follows:

“194(1)...

(2)...

(3)...

(4)...

(5) Subject to subsections (6), (7) and (8), where a provincial government is suspended arrangements shall be made to re-establish it and to hold fresh elections and make fresh appointments (if necessary) within 9 months after...

(6)...

(7) Subject to Subsection (7), if a provincial government is suspended under Subsection (1) (f), arrangements shall be made to re-establish it and to hold fresh elections and make fresh appointments (if necessary) within nine months after...” (emphasis added).

Fresh elections referred to in these provisions can only mean direct elections. It would make no sense for the words “fresh elections” to mean “indirect fresh elections”.

Clearly, therefore, the final draft before the Constituent Assembly also intended to adopt the concept of having direct elections for the members of provincial legislature.

There can be no doubt that the materials I have referred to do not support the meaning which is contended for by Counsel for the Attorney-General and the Constitutional Commission.

I now return to s. 187C (2) (a) of the Constitution. This provision adopted exactly the same words as s. 192 (2) (a) of the Draft Constitution. Section 187F adopted the same words as s. 194 (5) and (6) of the Draft Constitution. This means that the intention expressed in the CPC Report that a provincial legislature should be an elective body (that is to say a body directly elected by the people) has remained throughout the process of making of the Constitution and finally adopted in the original s 187C (2) (a) of the Constitution.

Even though Sch. 1.5 calls for a liberal interpretation of the word “elective”, I find that there is a clear contrary intention to interpret this word to mean direct election by the people. Section 187C (2) (a) therefore requires that a provincial legislature must be directly elected by the people.

Under s. 25 (3) of the Constitution a court is directed to adopt a construction of the Constitution in a manner which would give effect to the National Goals and Directive Principles subject only to any contrary intention of the Parliament. I discussed the manner in which National Goals and Directive Principles may be applied in SC Reference No 2 of 1992 [1992] PNGLR 336 at 360 and I adopt those remarks. The relevant principle is National Goal and Directive Principle No 2, Equality and Participation. This principle calls for:

“(1) an equal opportunity for every citizen to take part in the political...life of the country.”

This calls for equal opportunity to participate in terms of electing representatives to the provincial legislature or opportunity to be elected to an elective body such as a provincial legislature. The interpretation contended for by Counsel for the Provincial Executive would give effect to this principle in that all eligible voters would exercise their voting rights to elect a representative to the provincial legislature or stand as a candidate to be elected to the provincial legislature. The construction contended for by Counsel for the Attorney-General and Constitutional Commission would not give equal opportunity to eligible voters in the Province to participate because opportunities for membership of the provincial legislature is restricted to a group of selected people, namely those who are already members of the Parliament, heads of local-level governments, heads of urban authorities and urban councils, chiefs and a class of citizens, namely women. No opportunity is given to all other eligible voters to elect or stand to be elected to the provincial legislature. Such an interpretation would not give effect to this directive principle.

National Goal and Directive Principle 2 (2) provides:

“(2) the creation of political structures that will enable effective, meaningful participation by our people in that life, and in view of the rich cultural and ethnic diversity of our people for those structures to provide for substantial decentralisation of all forms of government activity.”

There can be no meaningful participation by the people if election of members of provincial legislature are not directly elected by the people. There is a significant difference at different levels of government. The idea is to give as many people as possible to participate at these different levels of government. The interpretation contended for by Counsel for the Provincial Executive, namely direct election would give effect to this directive principle. If this is not done then you limit the class of people who may be given the opportunity to participate at the provincial government level. The interpretation contended for by Counsel for the respondents supports centralisation of power in the hands of members of the National Parliament contrary to the directive principle which encourages substantial decentralisation of all forms of government activity.

This idea is more directly dealt with in National Goal and Directive Principle 2 (6): “the maximisation of the number of citizens participating in every aspect of development.” The concept of indirect election effectively minimises the number of people who may be given the opportunity to participate in the process of development at provincial government level.

Section 187C (2) (a) requires the provincial legislature to be “elective” or alternatively “mainly elective”. In the context of the meaning I have given to the word “elective”, the words “mainly elective” must mean that not all members should be directly elected. Some may become members of the legislature through some other means than by direct election by the people to the provincial legislature. This provision does not give any guidance as to the exact numbers of members who may become members by methods other than by direct election. However, “mainly elective” must mean there must be more directly elected members in number.

Also the section does not indicate the manner or the method by which others may become members. This would permit the Organic Law to provide for membership by nomination, appointment or ex-officio member by virtue of some other office.

Has the original meaning changed?

When considering the issue; whether or not the Constitution has changed the meaning of the words “elective, or namely elective legislative”, the amendment made to the Constitution and the Organic Law on Provincial Government, Local-Level Governments must be considered separately.

The Constitution is the superior law and the provisions of the Organic Law (like any other written law) are to be read subject to the provisions of the Constitution. What the Parliament intended for the Organic Law, cannot be taken to be the intention of the Parliament for the Constitution. To do this is to commit a fundamental breach of s 10 of the Constitution.

In addressing the question of whether the Parliament has changed the meaning of the words “elective or mainly elective”, the first point to consider is that the words have not been amended. If the Parliament intended to change meaning of these words, it would have amended them. The retention of the words “elective or mainly elective” is the clearest indication that the Parliament did not intend to change the meaning of those words as originally intended by the CPC.

Submissions have been put before us to make reference to (1) a report dated June 1994 by Constitutional Review Commission in relation to Provincial Government Reforms (2) debates in the Parliament relating to the new Constitutional Laws. First, these documents do not come within the class of documents set out under s. 24 of the Constitution. There is no other provision in the Constitution which would enable a Court to make reference to these documents as aids in the interpretation of the provisions of the Constitution.

Whether or not we should make reference to these documents is to be determined by reference to the underlying law set out under Sch 2 of the Constitution. Earlier in my judgement I made reference to these principles. However, I will not set out these principles again as in the end result it is not necessary to do so. I have examined the report and the debates and I find that there is nothing in them which bear any relevance to the question of the proper meaning to be given to the words “elective and mainly elective legislature”. The report or the debates do not discuss any change in the elective nature of the provincial legislature in s. 187C (2) (a). The reason is clear, the Parliament simply retained the original words and meaning intended in the original provisions. The amendments to the Constitution do not affect the nature or the characteristic of a provincial legislature. The legislature remains “an elective, or mainly elective legislature.” In fact the original intended meaning of the words “elective or mainly elective legislature” is also reflected in the nature of legislature established for Local-Level Government under the Organic Law on Provincial Governments and Local-Level Governments. Under s. 29 of the Organic Law the legislature is made up of members who are directly elected (s. 29 (1) and (b) and only two members who may be nominated (s 29 (1) (0)).

Section 10 of the Organic Law does not provide for direct election. An anomaly is created by this. Where a suspension of a Provincial Government is confirmed by the Parliament pursuant to s. 59 (2) of the Organic Law on Provincial Governments and Local-Level Governments, s. 187F of the Constitution provides that “arrangement shall be made to re-establish it within nine months from the effective date of suspension”.

The difficulty arises with regard to Members of Parliament (s. 10 (3) (a) of the Organic Law) and Heads of rural Local-Level Governments (s. 10 (3) (b) of the Organic Law). How can they be re-established as members of the Provincial Assembly? This could only be done by way of fresh direct elections. They cannot be reappointed or renominated. Section 10 as it stands is not workable within the scheme of things. The same problem cannot be said of suspension of Local-Level Government legislature. They can be re-established through fresh direct elections under s. 29 (1) (a) and (b) and nomination (s. 29 (1) (c) of the Organic Law). This in my view clearly supports the view that s 10 of the Organic Law ought to provide for direct election of members as directed by s. 187C (2) (a) of the Constitution.

I find that the Constitution clearly intended a directly elected provincial legislature and which gives all citizens a right to vote in the election of members of the provincial legislature or the right to be elected to the provincial legislature.

I now turn to s 10 of Organic Law on Provincial Government and Local-Level Government. I have already set out the terms of this section earlier in my judgement.

It is immediately clear that all categories of members provided here become members by virtue of some other office (s. 10 (a), (b)), or representative of some other level of government (s. 10 (c)) or appointed by the Minister responsible for provincial government and local-level government (s. 10 (d)) or appointed by Provincial Executive Council (s. 10 (e)) or appointed by the Provincial Assembly (s. 10 (f)). None of these members are directly elected by the people as required by s. 187C (2) (a) of the Constitution. In essence no election is conducted for the membership of the provincial legislature. Section 10 of the proposed law is clearly inconsistent with s. 187C (2) (a) of the Constitution and therefore invalid.

My answer to this question is yes.

QUESTION 5 (B)

It follows from the interpretation I have given in question 5 (a) that a provincial legislature is made up of members who must be directly elected. This read together with s. 50 of the Constitution means that every citizen who is of full capacity and has reached the voting age other than a person set out in s. 50 (1) (a) and (b) of Constitution has the right, and shall be given a reasonable opportunity to vote in an election of a member of a provincial legislature or stand as a candidate to be elected as a member of a provincial legislature.

Section 10 of the Organic Law on Provincial and Local-Level Government does not allow any election to be held for the provincial legislature and therefore prevent all citizens in the provinces from exercising their right to vote or stand for election in a provincial election. Therefore, it is in clear breach of the terms of s. 50 of the Constitution.

My answer to this question is yes.

QUESTION 5 (C)

At the time the Parliament made the Organic Law on Provincial Governments and Local-Level Governments (that is on 29 March, 1995 and 27 June, 1995) the relevant Constitutional provision which was in force was s. 187B which authorised an Organic Law to “provide for, or make provision in respect of, the granting to a Province of Provincial Government”. It did not expressly authorise the Organic Law to make provision for Local-Level Governments. Therefore, the Organic Law on Provincial Governments and Local-Level Governments to the extend that it provides for Local-Level Governments was not a law made in accordance with s. 12 (1) (a) of the Constitution. This same issue has been raised by Mr Isidore Kaseng in a subsequent case (OS 1 of 1995). I have considered fully the meaning and application of s. 12 (1) (a) in that case.

My answer to this question is yes.

QUESTION 5 (D)

I decline to answer this question.

LOS J: This is a special made under s. 19 of the Constitution by the Western Highlands Provincial Executive (the Referor) relating to the interpretation or application of a Constitutional Law. Reference arises from the proposed Constitutional Law amendment to pass any Organic Law for the purpose of creating Provincial Governments and Local Governments. The questions are:

(a) Is Section 10 of the proposed Organic Law on Provincial and Local-level Governments inconsistent with Sections 178C (2) (a) of the Constitution, or, alternatively, with the proposed Section 187C (2) (a) of the Constitution contained in Section 5 of the proposed Constitutional Amendment (Provincial Governments and Local-level Governments) law, in that to the extent that the said Section 10 provides for a provincial legislature to be made up of:

(i) Persons holding office in the provincial legislature ex officio, by virtue of their positions in other bodies, namely the Parliament and rural Local-level Governments; and

(ii) Persons appointed by the Minister responsible for Provincial and Local-level Government matters, the Provincial Executive Council and the Provincial Assembly; and

(iii) A representative of heads of urban authorities and urban councils, whose manner of selection for and taking up of membership is not provided, it does not meet the requirement that an Organic Law provide for ‘an elective, or mainly elective, legislature, as the case may be?

(b) Is section 10 of the proposed Organic Law on Provincial and Local-level Government inconsistent with section 50 of the Constitution to the extent that it provides for members of the Provincial Legislature to hold office without being directly elected to the provincial legislature?

(c) Is section 10 of the Proposed Organic Law invalid in that it is not expressly authorised by the Constitution or by the proposed Constitutional Amendment, as required by section 12 (1) (a) of the Constitution?

(d) Where it is determined that a provision of a proposed law which has been supported on a division by the prescribed majority of votes in accordance with section 14 (1) of the Constitution is invalid, does that determination have the effect of:

(i) preventing further passage through the Parliament of the entire proposed law; or

(ii) permitting further passage through the Parliament of tha proposed law, other than the provisions determined to be invalid; or

(iii) permitting further passage through the Parliament of the proposed law, including the provisions determined to be invalid; or

(iv) amending the proposed law as to delete the provisions determined to be invalid.

PRELIMINARY

Since the reference, the proposed Organic Law and the proposed constitutional amendment were passed by the Parliament. In both cases therefore there is no more question of proposed Organic Law or proposed constitutional amendment.

Section 10 of the Organic Law says:

(1) A provincial Government is hereby established for each province.

(2) A provincial legislature to be known as the Provincial Assembly or by whatever local name is considered appropriate, is hereby established, for each Provincial Government.

(3) A Provincial Assembly shall consist of:

(a) all Members of the Parliament representing electorates in the province; and

(b) heads of the rural Local-level Governments in the province; and

(c) one representative to represent the heads of both urban authorities and urban councils in the province; and

(d) where the chieftaincy system is in existence and is accepted in a province, paramount chiefs from the province not exceeding three in number of their duly appointed nominees, who shall be appointed by the Minister responsible for provincial government and local-level government matters on the recommendation of the Provincial Executive Council; and

(e) one woman representing women in the province appointed by the Provincial Executive Council on the nomination of the Provincial Council of Women; and

(f) such other members, not exceeding three in number, as the Provincial Assembly may by law, appoint from time to time.

(4) An Act of the Parliament shall make provision for the qualifications and disqualifications of the members referred to in Subsection (3) (f).

(5) The members referred to in Subsection (3) (d), (e) and (f) shall have full voting powers and shall be counted towards the quorum of a Provincial Assembly.

Section 187 (2) (a) of the Constitution says:

187C. Constitution, functions etc. of provincial governments

(1) Subject to this Part an Organic Law shall make provision in respect of the constitution, powers and functions of a provincial government.

(2) For each provincial government, there shall be established:

(a) an elective, or mainly elective, provincial legislature with such powers as are conferred by law; and

(b) a provincial executive; and

(c) an office of head of the provincial executive.

(3) An Organic Law shall provide for the minimum number of members for the provincial legislature and the maximum number of members that may be appointed as nominated members of the legislature.

(4) An Organic Law shall make provisions for and in respect of:

(a) grants, conditional or unconditional or both, by the National Government to provincial governments; and

(b) the imposition and collection of taxation by provincial government,

and may make other financial provision for provincial governments, to an extent reasonably adequate for the performance of their functions.

(5) An Organic Law shall make provision for the devolution and delegation to each provincial government of substantial powers of decision-making and substantial administrative powers in respect of matters of direct concern to the province.

(6) An Organic Law shall make provision in respect of the legislative powers of provincial governments.

(7) A question of the adequacy of provision made under Subsection (3), (4), (5) or (6) is non-justiciable.

The new section 187C (2) (a) of the Constitution says:

“187C. CONSTITUTION, FUNCTIONS, ETC, OF PROVINCIAL GOVERNMENTS AND LOCAL-LEVEL GOVERNMENTS

(1) Subject to this Part, an Organic Law shall make provision in respect of the constitution, powers and functions of a Provincial Government or a Local-Level Government.

(2) For each Provincial Government and Local-level Government, there shall be established:

(a) an elective, or mainly elective, legislature with such powers as are conferred by law; and

(b) an executive; and

(c) an office of head of the executive.

(3) An Organic Law shall provide for the minimum number of members for the Provincial Assemblies and Local-level Governments and the maximum number of members that may be appointed as nominated members of Provincial Assemblies and Local-level Governments.

(4) An Organic Law shall make provision for and in respect of:

(a) grants by the National Government to Provincial Governments and Local-level Governments; and

(b) the imposition and collection of taxation by Provincial Governments and Local-level Governments,

and may make other financial provision for Provincial Governments and Local-level Governments, to an extent reasonably adequate for the performance of their functions.

(5) An Organic Law shall make provision for the devolution and delegation to each Provincial Government and Local-level Government of substantial powers of decision-making and substantal administrative powers in respect of matters of direct concern to the province and to the local-level government area.

(6) An Organic Law shall make provision in respect of the legislative powers of Provincial Governments and Local-level Governments.

(7) A question of the adequacy of provision made under Subsection (3), (5) or (6) is non-justiciable.

QUESTION 5 (A)

The Referors argument revolves around the meaning and interpretation of “an elective, or mainly elective legislature”. It is argued that the legislature provided in section 10 of the Organic Law is not “an elective or mainly elective” because the persons occupy the legislature will not be directly elected by people of each province but the legislature will be occupied by persons with ex officio status. Apart from the dictionary meaning of “elective” the counsel for the Referor Mr Naru relies also on the Second National Goal and Directive Principles, the CPC Report and the case law like in Re: Organic Law (1982) PNGLR 214.

Mr Ninai appearing for the Principal Legal Advisor (PLO) and arguing for Negative says that section 187C (2) (a) does not envisage directly elected representations; all it requires is either elected or mainly elected representatives.

Mr Baker for the Constitutional Commission argues essentially that if the meaning of “elective or mainly elective” as argued by the Referor was intended section 10 of the Organic Law would have said so. Other parts of the Constitution especially section 99 use similar expression which includes both elected and nominated members. The reference by CPC Report to “direct elections” has obviously not been followed, so this should no longer be followed. What the Second National Goal and Directive principle requires is participation in the proccess of Government by appropriate means which is not limited to directly elected institutions.

The Referors basic point is that what section 10 tries to authorize is not permitted by the constitution because the constitution only allows a directly elected legislature. I consider that in a more restrictive meaning of “elective” or “mainly elective” the Referor may be correct. One must however look at a broadest context and the spirit of what is intended and not merely influenced by what has been in existence and has become unbreakable tradition. A diversion begun soon after the CPC Report which recommended direct elections. Section 99 of the Constitution uses the words “elective legislature”. The meaning of elective legislature has become broad so that membership of the National Parliament (s. 101) includes persons who are not elected but appointed (s. 102). I consider therefore the CPC report bear little relevance in this respect. The Supreme Court in Re: Minimum Penalties Legislation (1984) 314 said that where there was a divergence between CPS intended restrictive meaning and what was in the constitution it must be taken that the constituent assembly had not accepted the restrictive meaning.

Granting that, it may be argued and indeed it has been argued by the Referor that section 10 of the Organic Law is so drastic that it offends the root principles of representative democracy in that it offends against right to be elected to an elective public office in a genuine, periodic and free elections required by section 50 of the constitution. It is submitted that such participation through voting and standing for public offices at various levels of Government is envisaged by the Directive Principles in the Second National Goals. Much of the Referors argument on section 50 of the Constitution will be considered in the next question. I will therefore limit myself to consideration of directive principles. The Referor seeks to support the argument with reliance upon the Second National Goals especially the Directive 1, 2, 6, 8 and 9 of the Constitution. The Goal reads:

“2. Equality and Participation

We declare our second goal to be for all citizens to have an equal opportunity to participate in, and benefit from, the development of our country.”

(1) an equal opportunity for every citizen to take part in the political, economic, social, religious and cultural life of the country; and

(2) the creation of political structures that will enable effective, meaningful participation by our people in that life, and in view of the rich cultural and ethnic diversity of our people for those structures to provide for substantial decentralization of all forms of government activity; and

(3) every effort to be made to achieve an equitable distribution of incomes and other benefits of development among individuals and throughout the various parts of the country; and

(4) equalization of services in all parts of the country, and for every citizen to have equal access to legal processes and all services, governmental and otherwise, that are required for the fulfilment of his or her real needs and aspirations; and

(5) equal participation by women citizens in all political, economic, social and religious activities; and

(6) the maximization of the number of citizens participating in every aspect of development; and

(7) active steps to be taken to facilitate the organization and legal recognition of all groups engaging in development activities; and

(8) means to be provided to ensure that any citizen can exercise his personal creativity and enterprise in pursuit of fulfilment that is consistent with the common good, and for no citizen to be deprived of this opportunity because of the predominant position of another; and

(9) every citizen to be able to participate, either directly or through a representative, in the consideration of any matter affecting his interests or the interests of his community.

Because National Parliamentarians will also be members of the Provincial Assembly there is a fear that they may become dominant. I consider however that the leadership does not end with them. The participation in leadership extends to rural local governments in each province, representatives of heads of urban authorities, other appointed persons and in certain cases chieftans. No one is prevented or prohibited from participating in the process of leadership through any of those means. Equal opportunity of participation cannot be limited to political leadership, the goal also calls for equal opportunity to participate in economic life. If the costs of numerous layers of leadership in the country is minimised, more economic resources may be channelled, directed and applied to the benefit of the people. After all the argument is about leading and developing the same people in each province; section 10 harnessess the leadership from each authority in a province and puts it in an overall authority. Indeed the premable of the Organic Law states that intention of section 10.

My answer to this question is No.

QUESTION 5 (B)

I consider that the submission by the Referor in relation to this question is misconceived. Firstly the requirements of section 50 do not justify existence of a directly elective legislature or mainly elected legislature; section 50 is not a pre-condition to establishment of a type of a provincial institution. Once an institution has been established and its procedures of election or appointment established, then section 50 protects the rights to be able to be appointed, elected, or chosen to serve on the institution. It is not the other way around as suggested by the Referor.

My answer to this question is No.

QUESTION 5 (C)

I have answered this question in question 5 (a). That is the Parliament has decided to abandon the restrictive meaning of elective or mainly elective by amending the constitution to enable passing of an Organic Law creating a new system of Provincial Government and Local Level Government. To that extent, aside from the question of whether or not an Organic Law and the enabling constitutional provision could be passed together, s 10 is not inconsistent with s 12 (1) (a) of the Constitution.

My answer to this question is No.

QUESTION 5 (D)

BROWN J: This reference is brought by the Western Highlands Provincial Executive to the Supreme Court pursuant to s. 19 of the Constitution for this Court’s advisory opinion on the constitutional validity of s. 10 of the Proposed Organic Law on Provincial and Local Level Governments (hereinafter referred to as the Proposed Organic Law). The questions framed for this Court’s consideration have been set out at the conclusion of my reasons for convenience.

The Provincial Executive (hereinafter called “the Executive”) seeks this Court’s affirmation to the question that s. 10 of the Organic Law does not meet the requirement in the Constitution that an Organic Law provide for “an elective, or mainly elective provincial legislature”. The Principal Legal Advisor, the Solicitor-General, has appeared to argue the negative case as has the Constitutional Commission.

Shortly the further questions for this Court’s consideration relate to whether or not the proposed s. 10 is inconsistent with s. 50 of the Constitution; whether s. 10 is invalid in that it is not expressly authorised by the Constitution as required by s. 12 (1) (a), and the effect this Court’s finding, (if invalidity), would have on the further passage of the proposed laws or on laws if subsequently enacted.

The Proposed Organic Law on Provincial Government has with the Constitutional amendments been passed by Parliament in the most recent sittings of the House since the time of argument before this Court. They were passed on the 27 June 1995. Consequently this opinion relates to proposals which have become law. The laws which have been passed, and which are relevant on the questions are:

“187C. CONSTITUTION, FUNCTIONS, ETC, OF PROVINCIAL GOVERNMENTS AND LOCAL-LEVEL GOVERNMENTS

(1) Subject to this Part, an Organic Law shall make provision in respect of the constitution, powers and functions of a Provincial Government or a Local-Level Government

(2) For each Provincial Government and Local-Level Government, there shall be established:

(a) an elective, or mainly elective, legislature with such powers as are conferred by law; and

(b) an executive; and

(c) an office of head of the executive.

(3) An Organic Law shall provide for the minimum number of members for Provincial Assemblies and the Local-Level Governments and the maximum number of members that may be appointed as nominated members of Provincial Assemblies and Local-Level Governments.

(4)...”

“10. PROVINCIAL GOVERNMENT AND PROVINCIAL LEGISLATURE

(1) A Provincial Government is hereby established for each province.

(2) A Provincial Legislature to be known as the Provincial Assembly or by whatever local name is considered appropriate, is hereby established for each provincial government.

(3) A Provincial Assembly shall consist of:

(a) all members of the Parliament representing electorates in the province; and

(b) heads of the rural local level governments in the province; and

(c) one representative to represent the heads of both urban authorities and urban councils in the province; and

(d) where the chieftaincy system is in existence and is accepted in a province, paramount chiefs from the province not exceeding three in number or their duly appointed nominees, who shall be appointed by the Minister responsible for provincial government and local level government matters on the recommendation of the Provincial Executive Council; and

(e) one woman representing women in the nted by the Provincial Executive Council on the nomination of the Provincial Council of Women; and

(f) such other members, not exceeding three in number, as the Provincial Assembly may by law appoint from time to time.

(4) An act of the Parliament shall make provision for the qualifications and disqualifications of the members referred to in Subsection (3) (f).

(5) The members referred to in sub-section (3) (d), (e), and (f) shall have full voting powers and shall be counted towards the quorum of a Provincial Assembly.”

The Executive says that all members of the National Parliament representing electorates in a province and all heads of rural local governments in a province will automatically be members of the Provincial Legislature in that province. In most provinces, they will constitute a majority of assembly members. If they are not elective, the requirement for an elective or mainly elective body will not be met. These members do not satisfy the elective requirements for two main reasons.

The changed Organic Law on Provincial Governments has come about as a result of a perceived failure of the previous Provincial Government system. The new Organic Law on Provincial Government arose out of the By-partisan Constitutional Review Commission’s recommendations relating to Provincial Government Reforms, the first interim report having been published in June 1994. Reasons for the need for change were incapsulated by the Constitutional Review Commission where it said “during tours recently undertaken, we were reminded again and again that the present form of decentralisation has not adequately delivered government services to our people and there is a need for it to be reformed”.

The Commission was of the view that the Provincial Government System had been designed to meet two long term objectives namely:

To make Government more responsive to the needs of our people and secondly to enable them to participate in the process of Government.

The Commission said that these two objectives are still relevant today, as they were to the Constitutional Planning Committee in the early 1970’s. The Commission posed the question “have these objectives been effectively achieved by the implementation of the Provincial Government System”. On the evidence available to the Committee the answer to that question was generally negative (although some positive achievements by a few provincial governments are noteworthy).

This is by way of background to the Commission’s perceived need for the amendment to both the Constitution and the Organic Law on Provincial Government.

THE ARGUMENTS

The Executive says first, it is by virtue of holding other office that these members are entitled to hold office in the Provincial Legislature and not by virtue of election to that provincial body. The Executive asserts that such members cannot be regarded as “elective” members of the Provincial Legislature simply because they have been elected to other bodies. The Executive says that the Constitutional Provision requires that it be the Provincial Assembly itself which is “elective”. The fact that a person is elected to the national body and who holds office ex-officio in a second body does not transform the second body into into an “elective body”.

The Executive goes on to say s. 50 of the Constitution guarantees all citizens of voting age a right and a reasonable opportunity to both vote for, and to be elected to, elective public office at genuine periodic free elections. The Executive says it is clear then that an elective institution is one subject to full and normal election procedures. The same meaning must be given to the word when it qualifies an institution rather than a position in an institution.

The Executive further argued that if appointed members can constitute a majority, then a Provincial Legislature is not mainly elective in any sense. The Executive gave examples.

Mr Ninai for the Solicitor-General advances the following arguments. The Solicitor General contents that there is no inconsistency between s. 10 of the new Organic Law and s. 187C (2) (a) of the Constitution. Section 187C (2) (a) does not envisage “directly elected representatives” as constituting a Provincial Assembly. All it requires is either elected or mainly elected representatives. Section 10 of the Organic Law provides for elected representatives in the form of National Parliamentarians to be members of the Provincial Assembly. This satisfies the requirement for a mainly elective Provincial Legislature. For his authority he relies on the original Constitutional Planning Committee Report Chapter 10 p. 5 and the variance in wording found in s. 187C (2) (a) of the Constitution which subsequently came into effect and which corresponds with that new s. 187C (2) (a).

So far as the second question is concerned Mr Ninai says that s. 50 of the Constitution provides for all citizens right to vote and to stand for public office. He says this provision assumes that an elective office is in existence before the right to vote and stand for public office can be exercised. In s. 10 of the Proposed Organic Law the public office is the office of members of Parliament of an electorate. Any citizen can consequently vote for an candidate of his choice or can stand for such an office. Mr Ninai says there is no violation or denial of the rights found in the s. 50.

In so far as the third question is concerned Mr Ninai argues that s. 12 like s. 11 of the Constitution is not available to be used to determine whether a law is inconsistence with the Constitution. The proper provision for that purpose is s. 10. Section 12 (1) (a) of the Constitution uses the words “is expressly authorised” and consequently the Constitution does not expressly state what an Organic Law should contain. The phrase must be distinguished from a prohibition or restriction. Section 10 of the Organic Law is authorised by s. 187C (2) (a) of the Constitution. Mr Ninai says in those circumstances, the requirements of s. 12 (1) (a) of the Constitution have been complied with and accordingly the answer should be yes.

In so far as the fourth question is concerned Mr Ninai says that the effect of holding a proposed law invalid will not prevent further passage through the Parliament of the Proposed Law. Since the proposed amendments to the Constitution and Organic Law on Provincial Government have passed through Parliament the questions are academic in any event and I do not propose to answer them. The remaining questions of course do not arise in the circumstances with the passing of these particular laws.

Mr Baker appeared for the Constitutional Commission. He says that s 10 establishes a Provincial Legislature for each province and prescribes the composition of the Legislature. Mr Baker says that the Executive submits that only a directly elected Legislature is permitted by the Constitution. On this issue the Commission says:

that it is inherently unlikely that the Constitution would restrict the nature of a Provincial Legislature in the fashion claimed.

If direct election only were permitted then the section could have so provided. Other provisions in the Constitution support a wide interpretation of s. 187C (2) (a). Section 99 of the Constitution uses the expression “elective legislature” and this expression includes both elected and nominated members. The use of the words “mainly” or meaning “chiefly” or “for the most part” also indicates a wider scope was envisaged otherwise, the expression “elective legislature” would have been used. Expression used in the Constitution should be read as having similar meanings.

The earlier CPC report refers specifically to direct elections but this term has not been used in the Constitution. The CPC report cannot be relied upon because its recommendations have clearly not been followed. Mr Baker refers to s. 16 of the Organic Law on Provincial Government which provides for a Provincial Legislature at present to include indirectly elected members namely, the members of the National Parliament and members who have been elected by local and community governments. No challenge has been made to those provisions as being inconsistent with s. 187C (2) (a). Where there is inconsistency between the Constitution and the CPC report the Court should follow the Constitution. Mr Baker referred to SCR No 184 of 1984 re Minimum Penalties Legislation; 1984 PNGLR 314. There the Supreme Court elected to follow the provisions of the Constitution and not apply the provisions of the CPC Report as the provisions were distinctly different. It is submitted that the same principle applies in this case.

The expression “mainly” means “chiefly” or “for the most part”. The composition of the Provincial Legislature is mainly elective in the sense of having a preponderance of members who are members by virtue of having been elected for public office. The Members of the Parliament are elected and the heads of rural and urban local level governments are elected. “Mainly” does not mean a majority and the Court should look at the overall composition of the Legislature in terms of groups rather than individuals. The group of Members of Parliament and heads of rural and urban local authorities representing the people of the province will be the most significant grouping and in that sense the people of the province are represented at provincial level by elected members.

The Constitution requires that its provisions be given a legal interpretation and therefore s. 187C (2) (a) should be so interpreted.

Other provisions in the Constitution support the validity of indirectly elected legislatures. The second national goal and directive principle is relied upon and the second and ninth parts of the goal indicate that what is required is participation in the process of government by an appropriate means. The means is not limited to directly elected institutions.

The legislation as a whole gives effect to the Constitution and s. 10 has the effect of bringing together at the provincial level national and rural and urban elected officials. Plainly the Legislation abandons the approach of having a directly elected third tier of government in addition to the national and local levels. The preamble to the Organic Law recites that the changes are for the purpose of promoting equal opportunity and popular participation in government at all levels. The general principles at s. 12 (2) (a) state the principle of mainly elective representative and participatory government. The Proposed Organic Law therefore implements the national goals and directive principles.

In so far as the CPC were concerned as to accountability through the electoral process, accountability will be maintain through the s. 10 legislature as those indirectly elected must still account for their actions to those who elected them at the national and local levels.

Mr Baker argued the second question in a similar fashion to Mr Ninai and said s. 187C (2) (a) is the determining provision and not s. 50. He says that the s. 50 expresses a general right to take part in the conduct of public affairs and to vote for and be elected to elective public office. Further s. 50 does not prescribe the offices which must be elective, it only creates general rights capable of enforcement once other provisions have created those elective offices.

He relates the third question to the first and says that s. 10 is expressly authorised by s. 187C (2) (a) which validly provides for an indirectly elected Provincial Legislature.

Mr Baker dealt with the remaining questions but in the circumstances I find I do not have to answer those questions and will not set out his arguments.

THE FIRST QUESTION

I now wish to deal with the first question. The applicant clearly argues that the Constitution (whether before amendment or after) predicates that provincial members should be elected directly to, not as a consequence of, having been elected to another constituent body. That is the import of the earlier CPA Report Ch 10 p. 5 which says:

“44. The Provincial Assembly should be the Legislative and Policy making body for each Provincial Government. Each should also have ultimate control over the performance of each Provincial Governments Administrative responsibilities.

45. The Committee believes that the members of each Provincial Assembly should, in principle, be directly elected by the people. The should be answerable to the people at periodic elections.

46. At present, Local Government Councils are represented on area authorities. The people of the various districts are only indirectly represented. The Councils who sit on area authorities were chosen to represent their wards at council level. They were not chosen by the people to represent them at district level.”

Is s. 10 then incompatible with the provisions of the Constitution? I would say not for the electoral system is capable of affording the voters of the country their selection of representatives both at a national and provincial level. The Organic Law on Provincial Government details the legislative functions of the provincial representatives thus selected. The particular character of the provincial representative function is clearly envisaged to be different from that which previously existed. The effectiveness of the previous function by those earlier representatives has been seriously compromised by the most recent Constitutional Commission Report which is critical of the delivery of services to the people for instance. There is no doubt that, within the limits prescribed by the Constitution, Parliament may provide a form of democratic representation in a Provincial Legislature. Parliament’s means of doing so may be many and varied. It has clearly chosen a fresh form by passing the replacement Organic Law on Provincial Government and the form or method of representative democracy reflected in s. 10 clearly differs from that envisaged by the original CPC Report quoted above. Nevertheless the reported CPC paragraphs do not form part of the Constitution and are merely aids to its interpretation. Where there is a clear disparity in expression and consequently in meaning between the words of the Constitution and the Report then clearly the Court is bound to adopt the wording of the Constitution. (see SCR No 1 OF 1984 re - Minimum Penalties Legislation; 1984 PNGLR 314).

It can be seen, though, that the Organic Law does not prevent the election of a person or restrict the possibility of the election of a person to the office of a Provincial Assembly. What it does is to provide for the method of assembly, which is different from the concept of universal adult suffrage, a principle of the Constitution. That fundamental right is sufficiently secured by ensuring that the value of each person’s vote is not disproportionate to that of another persons. Section 10 in no way affects the weighing of votes. The only manner in which a person may be elected to the Provincial Assembly (apart from particular appointees) is by standing for office as a member of the National Assembly and consequently on election, becoming eligible for appointment to the office of the Provincial Assembly. Election then, is a prerequisite to eligibility for appointment to the Provincial Assembly and there is no other way (so far as that class of Assembly members is concerned) for a person to sit in the Provincial Assembly. Section 187C (2) (a) clearly provides for representative government in the Provincial Assembly.

This may be contrasted with s. 24 of the Australian Constitution which provides, in the case of the House of Representatives for instance, that it “shall be composed of members directly chosen by the people of the Commonwealth” the phrase “elective or mainly elective” in our s. 187C (2) (a) is different in form or method to the Australian example, and predicates the nature of the Assembly. Section 10 of the Organic Law on Provincial Government does not impinge on the fundamental right in each elector to an equal share in political power by exercising his franchise.

I am satisfied that the provisions of s. 10 do not go beyond what is reasonable and appropriate for the carrying into effect and securing the purposes of s. 187C (2) (a).

It follows then that I would answer the first question in the negative.

AIDS TO INTERPRETATION

The applicant seeks to draw an implication of what the phraseology in s. 187C (2) (a) by reference back to the earlier final CPC Report. That runs counter to the principle that any implication must be securely based. The terms of s. 10 take little account of the direct restrictive nature of the phrase in the CPC Report referring to “a directly elected legislature”. This form of words echoes the Australian model. The words have not been reproduced in s. 187C (2) (a). Rather, ordinary principles of construction are to be applied so as to discover, in the actual terms of s. 187C (2) (a) its expressed or implied meaning. It would be unnecessarily restrictive if an interpretation was placed on the words of s. 187C (2) (a) which in effect substituted the phraseology in the CPC Report for that of the Constitution.

Consequently I am not prepared imply that restriction of the CPC Report, for it is unnecessary to do so by the clear terms of s. 187C (2) (a).

THE UNEXPRESSED ASSUMPTION

(reliant on the wording of the CPC Report)

There can be no unexpressed assumption upon which the framers of the Constitution proceeded. The Executive suggests that provincial assembly members should be directly elected. That “unexpressed assumption” relies upon the original CPC Report. Unexpressed assumptions have no place in the interpretation of our Constitution for it is an autochthonous document. The Australian Constitution, on the other hand, sprang from the secession by States, by Imperial Act, of particular rights and powers to a Federal Parliament and is not autochthonous.

In this instance, where the repealed Organic Law on Provincial Government came into effect years after Independence, and where s. 187C (2) (a) explicitly differs from the Reports recommendations, no reliance can be placed on any such assumptions which are not expressed, in so many words, in the Constitution.

There is nothing in s. 187C (2) (a) which requires a special manner or form of election, which the Court must imply by reading “direct election” into the section. The integrity of universal suffrage, as it affects the right to seek and be elected to provincial office, remains unaffected by s. 10.

The sovereign nature of the National Parliament (once the prerequisite majority of votes has been mastered), to change provisions of the Constitution and all Organic Laws should not be and cannot be fetted by the Courts. It is a mistake to imply a frame of government in this case, the provincial system, sacrosanct from change when the National Parliament has the comprehensiveness of powers to change that frame work. That is, in fact, what it has sought to do through its constituent powers. It has not been shown to have fallen foul of the Constitutions basic tenants.

An Organic Law purporting to be passed under s. 187C (2) (a) for instance is valid if it is a law which shall “provide for or make provision in respect of, the granting to a province of Provincial Government...” Whether s. 10 is valid may also be viewed as one of degree. Just as s. 187C (2) (a) speaks of “mainly elective”, this Court looks to the section under review to see if it could be said to have a reasonable connection with that “elective, or mainly elective” phrase predicating the legislature. Apart from those nominated positions, the principal assembly seats are chosen by the electorate by vote. Whilst that vote may go to directly electing a person to another Constituent Assembly as a representative for the province, the fact remains that by no other means can a person become eligible for a seat in the Provincial Assembly than by election. The electorate can be educated to appreciate that the effect of voting for a Constituent seat in the National or Local Government Assembly will also mean that those successful candidates will be eligible to sit and represent their interests in the Provincial Assembly.

The question proposed in (c), “is s. 10 of the Proposed Organic Law invalid in that it is not expressly authorised by the Constitution or by the proposed Constitutional Amendment, as required by s. 12 (1) (a) of the Constitution, “does direct attention to the need for express authorisation by the Constitution for or in respect of a matter dealt with in an organic law. As I have said, the matter dealt within s.10 clearly falls within the ambit of the phraseology of s. 187C (2) (a). Subsection (1), s. 187C provides that “an Organic Law shall make provision in respect of the Constitution, powers and functions of a Provincial Government or a Local-Level Government”. Section 10 of the Organic Law is the “provision” relating to the “elective or mainly elective legislature ...” I see no need to import, as it were, any more power to justify the making of provision, into s. 187C of the Constitution, for it is explicit when dealing with the matters which must need be provided for in the Organic Law which follows. Section 10, then is an explicit matter referred to in s. 187C (2) (a) and as such is validly authorised by that Constitutional part.

Those provisions, then, in s. 10 are fairly within the province of the power contained in s. 187C (2) (a). A succinct expression of principle, once the Organic Law has been found to be within the ambit of s. 187C (2) (a) is:

“The justice and wisdom of the provisions which it makes in the exercise of its powers over the subject matter, are matters entirely for the legislature and not for the judiciary (Burton v Honan [1952] HCA 30; [1952] 86 CLR 169 at 179 per Dixon CJ).

On the second question I adopt the arguments of Mr Ninai and Mr Baker as for s. 50 of the Constitution does not prescribe offices which must be elective, it only creates general rights capable of enforcement once other provisions have created those elective offices. The relevant provisions are found in s. 187C (2) (a).

For these reasons I would answer the remaining questions:

(a) No.

(b) No, for the Constitution, s. 50 is not relevant.

(c) No.

(d) No need to answer.

EXTRANEOUS MATERIAL FOR THE COURTS ASSISTANCE ON INTERPRETATION

There was some argument about the material available to the Court to consider beyond those prescribed by s. 24 of the Constitution. It is apparent that I find it helpful to disregard the final report of the Constitutional Planning Council Report of the 13 August 1974 (the “CPC Report”) for in this particular case the Constitution explicitly differs for the recommendations of the Committee. I adopt Kearney J’s approach expressed in the State v Independent Tribunal Ex Parte Sasakila [1976] PNGLR 507:

“One consequence of this approach to interpretation is that the Court should not fail to give a provision the effect it considers the Parliament intended, by applying a literal or ‘plain meaning’ test nor should it attribute to the legislature an intention to produce a capricious or unjust result.”

Judicial ingenuity does not encompass, in my view, the need to try and follow the tortuous paths of the reading debates in the Parliament, rather this Court should concentrate on the words actually used avoiding altogether any unexpressed assumptions which may be proposed. Unexpressed assumptions have no place in an autochthonous Constitution. It follows, then that in this case there is no need to look beyond the provisions of the Constitution itself, assisted by the material referred to in s. 24 of the Constitution.

The questions are:

(a) Is Section 10 of the proposed Organic Law on Provincial and Local-level Governments inconsistent with Sections 187C(2)(a) of the Constitution, or, alternatively, with the proposed Section 187C (2) (a) of the Constitution contained in Section 5 of the proposed Constitutional Amendment (Provincial Governments and Local-level Governments) law, in that to the extent that the said Section 10 provides for a provincial legislature to be made up of:

(i) Persons holding office in the provincial legislature ex officio, by virtue of their positions in other bodies, namely the Parliament and rural Local-level Governments; and

(ii) Persons appointed by the Minister responsible for Provincial and Local-level Government matters, the Provincial Executive Council and the Provincial Assembly; and

(iii) A representative of heads of urban authorities and urban councils, whose manner of selection for and taking up of membership is not provided,

it does not meet the requirement that an Organic Law provide for ‘an elective, or mainly elective, provincial legislature’ or ‘an elective, or mainly elective, legislature, as the case may be?

(b) Is section 10 of the proposed Organic Law on Provincial and Local Level Government inconsistent with section 50 of the Constitution to the extent that it provides for members of the Provincial Legislature to hold office without being directly elected to the provincial legislature?

(c) Is section 10 of the Proposed Organic Law invalid in that it is not expressly authorised by the Constitution or by the proposed Constitutional Amendment, as required by section 12 (1) (a) of the Constitution?

(d) Where it is determined that a provision of a proposed law which has been supported on a division by the prescribed majority of votes in accordance with section 14 (1) of the Constitution is invalid, does that determination have the effect of:

(i) preventing further passage through the Parliament of the entire proposed law; or

(ii) permitting further passage through the Parliament of that proposed law other than the provisions determined to be invalid; or

(iii) permiting further passage through the Parliament of the proposed law, including the provisions determined to be invalid; or

(iv) amending the proposed law so as to delete the provisions determined to be invalid.

SAWONG J: This was a special reference pursuant to Section 19 of the Constitution for the advisory opinion of the Supreme Court. The reference has been made by the Provincial Executive of the Western Highlands Provincial Government. The questions that have been referred to this Court for it’s opinion are as follows:

1. Is Section 10 of the proposed Organic Law on Provincial and Local Level Governments inconsistent with Sections 187C (2) (a) of the Constitution or alternatively, with the proposed Section 187C (2) (a) of the Constitution contained in Section 5 of the proposed Constitutional Amendment (Provincial Governments and Local-level Governments) law, in that to the extend that the said Section 10 provides for a provincial legislature to be made up of:

(i) Persons holding office in the provincial legislature ex officio, by virtue of their positions in other bodies, namely the Parliament and rural Local-level Governments; and

(ii) Persons appointed by the Minister responsible for Provincial and Local-Level Government matters, the Provincial Executive Council and the Provincial Assembly; and

(iii) A representative of heads of urban authorities and urban councils, whose manner of selection for and taking up of membership is not provided, it does not meet the requirement that an Organic Law provide for ‘an elective, or mainly elective, provincial legislature’ or ‘an elective, or mainly elective, legislature, as the case may be?

2. Is section 10 of the proposed Organic Law on Provincial and Local Level Government inconsistent with Section 50 of the Constitution to the extent that it provided for members of the Provincial Legislature to hold office without being directly elected to the provincial legislature?

3. Is Section 10 of the Proposed Organic Law invalid in that it is not expressly authorised by the Constitution or by the proposed Constitutional Amendment, as required by Section 12 (1) (a) of the Constitution?

4. Where it is determined that a provision of a proposed law which has been supported on a division by the prescribed majority of votes in accordance with Section 14 (1) of the Constitution is invalid, does that determination have the effect of:

(i) preventing further passage through the Parliament of the entire proposed law; or

(ii) permitting further passage through the Parliament of that proposed law other than the provisions determined to be invalid; or

(iii) permitting further passage through the Parliament of the proposed law, including the provisions determined to be invalid; or

(iv) amending the proposed law so as to delete the provisions determined to be invalid.

Before I answer the questions posed, there are several preliminary issues that need to be resolved.

First point to note is that whilst the matter was before this Court, the Parliament has passed both the Constitutional Amendment and the Organic Law. The effect of that is that the laws are no longer proposed laws.

Secondly, Question 5 (d) has been conceded by the Referee that it is not necessary for the Court to answer that question. That being the case, I decline to answer that question.

The brief background to the reference is as follows.

Two laws have now been passed by the Parliament. The first is the Constitutional Law amending the Constitution for the purposes of creating provincial government and local-level governments.

The second is the Organic Law on Provincial Government and Local-level Governments.

Before I deal with the interpretation of Section 10 as against provisions of Section 187 (2) (c) (a) and the other constitutional revisions, I deal with the question of whether this court should use only the materials set out under Section 24 of the Constitution or some other materials not specified in Section 24 of the Constitution to interpret these new Constitutional laws.

I agree with what the Chief Justice, has said with regard to this issue. I would just like to add a few of my own remarks.

Mr Naru submits that the court should not refer to other materials not specified under Section 24 of the Constitution to interpret the constitutional provisions. No compelling reasons were advanced to support the contention that this Court should not refer to extrinsic material to help it to interpret, in this particular instance, the constitutional laws. Mr Naru’s submission was that as these extrinsic material have not been specifically set out under Section 24 of the Constitution, nor were they referred to in the Constitutional Planning Committee Report no extrinsic material should be or ought to be used. But the history, for instance of Section 187 (2) (C) of the Constitution shows that this provision was inserted some two years after the Constitution came into force. Yet when that section was inserted, it did not adopt precisely what was recommended in the CPC Report. Mr Naru further submits that if the farmers of the Constitution had intended to include reports and debates on amendments of Constitutional laws as aids to interpretation to those amendments then the farmers of the Constitution could easily have included those reports and debates in the Constitution as aids of interpretation. He submits that as there was no expressed provision for these extrinsic material as aids to interprete the constitutional provisions then this court should not take these materials into consideration or at least look at this material to aid it in interpreting the constitutional provisions.

Mr Baker submits that the reports of the Constitutional Commission should be looked at to aid this court in interpreting a constitutional law. Mr Nanei supports that submission. I accept their submissions. In my view, the submissions put forward by Mr Naru are restrictive in nature, particularly after 20 years of independence and nearly 20 years of a system of government which the people of Papua New Guinea through their elective representatives have considered to be inappropriate to their circumstances. In Haiveta v Wingti (SCA No 144 of 1993 25 August 1994) the Chief Justice said at page 12:

“One task of judicial interpretation then is to uphold the cause of justice. What is the interpretation that would best achieve a sense of fairness and justice. The test of standard must be an objective one. It is not what I believe to be right. It is what I may reasonably believe that ordinary Papua New Guineans, or normal intellect, understanding and consciousness might reasonably look upon as right. It must be interpretation that gives cognisance to and I accords with the ordinary person’s objective perception of the public or national interest. The national and public interest are in this context synonymous.

Because constitutional interpretation is the sole preserve of the Supreme Court, the highest judicial authority in the nation as delegated by the people to it through the Constitution, the court has to be responsive to the constitutional values. The source or philosophy of the Constitution must inspire the judicial making process to adopt a broad goal oriented and purposive approach directed towards advancing the constitutional objectives when interpreting the constitution.”

QUESTION 5 (A)

Mr Naru, submitted that Section 10 of the Organic Law is unconstitutional in that it is inconsistent with Section 187C (2) (a) of the Constitution. Section 10 of the Organic Law is set out in part 2, division 1, subdivision A of the Organic Law on Provincial Governments and Local-level Governments (the Organic Law). Section 10 is as follows:

“10. Provincial Government and Provincial Legislature

(1) a provincial government is hereby established for each province.

(2) a provincial legislature, to be known as the provincial assembly or by whatever local name is considered appropriate, is hereby established, for each provincial government.

(3) a provincial assembly shall consist of:

(a) all members of the Parliament representing electorates in the provinces; and

(b) heads of the rural local level governments in the province; and

(c) one representative to represent the heads of both urban authorities and urban councils in the province; and

(d) where the chieftaincy system is in existence and is accepted in a province, the paramount chiefs from the province not exceeding three or their duly appointed nominees, who shall be appointed by the Minister responsible for Provincial Government and Local level Government matters on the recommendation of the Provincial Executive Council; and

(e) one woman representing women in the province appointed by the Provincial Executive Council under nomination of the Provincial Council of Women; and

(f) such other members not exceeding three in number, as the Provincial Assembly may by law, appoint from time to time.

(4) an act of the Parliament shall make provision for the qualifications and disqualifications of the members referred to in subsection (3)(f).

(5) The members referred to in subsection (3) (d), (e), (f) shall have full voting powers and shall be counted towards the quorum of a provincial assembly.”

Section 187C of the Constitution is as follows:

“187C. Constitution, functions, etc, of provincial government and local level governments

(1) Subject to this part, an Organic Law shall make provision in respect of the Constitution, powers and functions of a provincial government or a local level government.

(2) For each provincial government and local level government, there shall be established:

(a) an elective, or mainly elective legislature with such powers as are conferred by law; and

(b) an executive; and

(c) an office of head of the executive.

(3) An organic law shall provide for the minimum number of members for the provincial assemblies and local level governments and the maximum number of members that may be appointed as nominated members of the provincial assemblies and local level governments.

(4) An organic law shall make provision for and in respect of:

(a) grants by the National Government to provincial governments and local level governments; and

(b) the imposition and collection of taxation by provincial governments and local level governments; and make other financial provisions for provincial governments and local level governments, to an extent reasonably adequate for the performance of their functions.

(5) And the organic law shall make provision for the devolution and delegation to each provincial government and local level government of substantial powers of decision making and substantial administrative powers in respect of matters of direct concern to the province and to the local level government area.

(6) An organic law shall make provision in respect of the legislative powers of the provincial governments and local level governments.

(7) A question of the adequacy of provision made under subsections (3), (4), (5) or (6) is no justiciable.”

Mr Naru submits that Section 10 of the Organic Law is unconstitutional in that it is inconsistent with Section 187C (2) (a) of the Constitution. He further submitted that Section 10 of the Organic Law is also inconsistent with Section 50 and Section 12 (1) (a) of the Constitution and to the extent that it is inconsistent with those provisions, it is invalid.

Messrs Ninai and Baker on the other hand submitted that Section 10 of the Organic Law is not inconsistent with Section 187C (2) (a) or Section 50 or Section 12 (1) (a) of the Constitution.

The issue revolves around the interpretation of the words “elective” or “mainly elective,” as these words appear in s 187C (2) (a) of the Constitution. Firstly, the word “elective” is not defined either in the Constitution itself or in the Organic Law on Provincial Governments and Local Level Governments.

I accept the submission of Mr Naru that the test to be applied in interpreting constitutional provisions has been clearly set out by the Supreme Court in Supreme Court Reference No 2 of 1992 (Reference by the Public Prosecutor) [1992] PNGLR 336. The Supreme Court at 345-346 said this:

“Constitution Schedule 1.5 enjoins the court to read constitutional laws as a whole and to give to all provisions, words, expressions and propositions therein there “fair and liberal meaning”. We agree with, and wish to adopt as entirely relevant to this exercise of interpreting Papua New Guinea Constitution, principles expressed by Barnett J in SCR No 3 of 1986; reference by Simbu Provincial Executive [1987] PNGLR 151 at 174. His Honour said:

When interpreting the details of a provision in a constitutional law, therefore it is an essential prerequisite for the judicial mind to be enlightened by the spirit of the Constitution itself. This enlightenment comes from developing a thorough understanding of the national goals and directive principles, by taking an over-view which will place the particular provision in the context of total legislative scheme of which it forms the part and by seeking to understand the intention of the founding fathers as they expressed it on behalf of the people, when enacting the Constitution and subsequent amendments...but it seems to me that the Constituent Assembly gave a clear direction to courts interpreting constitutional laws. The direction is to reverse the previous consecutive approach to statutory interpretation which tends to commence the task by a detailed and literal study of the words used, turning to some “deemed” intention of the legislator only in case of verbal ambiguity or internal conflict. That direction is to enlighten the judicial mind first and then examine the actual words used from the view point of the enlightened mind. It must be a mind striving to give effect to the national goals and directive principles. If the words are quite clear in their literal meaning when seen from this enlightened view point, and no other interpretation is fairly open then they must be given that literal meaning. If, however, they can fairly be given an interpretation which is clearly more consistent with the spirit of the founding fathers, then they should be given that enlightened interpretation. In seeking to understand this intention, courts are specifically empowered and encouraged to examine the constitutional planning report, the fourth draft of the Constitution and the record of he constitutional debates (Constitution s 24).”

Counsel for the referee submits that Section 10 of the Organic Law is inconsistent with Section 187C (2) (a) of the Constitution and to the extent that it is inconsistent with, it is unconstitutional. He submits that the formula set out under Section 10 of the Organic Law would mean that no member of the provincial assembly would have been either elected or mainly elected. He submitted that in order for the provincial legislator to be either “elective” or “mainly elective” then, a separate and distinct election for members of provincial legislators must take place. He submitted that because the constitution of the provincial legislature is or will be comprised of members who are elected at the local level government and national level government and other ex officio members and appointed members, these would not amount to “elective” or “mainly elective” members and thus it would contravene Section 187C (2) (a) of the Constitution. The Principle Legal Advisor submitted that there was no inconsistency between Section 10 of the Organic Law and Section 187C (2) (a) of the Constitution. He submits that Section 187C (2) (a) requires a provincial assembly to be constituted of mainly of elective or elective legislature.

Essentially the Principle Legal Advisor’s submission was that the categories of persons who are to compose the provincial legislature are elected persons and would be the majority in a provincial legislature whilst the minority of the members in the provincial assembly would comprise of appointees made pursuant to Section 10 (d),(e) and (f).

I am of the view that a closer scrutiny of the provisions of Section 10 of the Organic Law and Section 187C (2) (a) of the Constitution would show that those provisions could not and are not in conflict with each other. It is quite clear in my view that other than persons who are ex official members and persons who are appointed, the rest of the members who would comprise the provincial legislature would be directly elected either at the local level government elections or at the National Parliament elections. The Constitution does not say that a provincial assembly shall be constituted by “directly and separately elected” members. Section 187C (2) (a) says that a provincial legislature shall be comprised of “elective or mainly elective legislature”. I am of the view that the provisions of Section 10 of the Organic Law are not in consistent with provisions of Section 187C (2) (a) of the Constitution.

QUESTION 5 (B)

Counsel for the Referee also submitted that Section 10 of the Organic Law is in consistent with Section 50 of the Constitution on the basis that Section 10 of the Organic Law provides for members a provincial legislature to hold office without being directly elected to the provincial legislature.

Section 50 of the Constitution reads:

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

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

(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an organic law or an act of Parliament for the purposes of this paragraph, has the right, and shall be given a reasonable opportunity:

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

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

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

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

Counsel for the Referee submits that Section 10 of the Organic Law does not make provision for the members of the provincial legislature to be elected to the provincial legislature. He submits that to that extent, it deprives eligible citizens their right to stand for and vote for and be elected to the provincial legislature. He submitted that the intention behind Section 50 of the Constitution was to have “elections at all level of the government.” He submitted that Section 10 of the Organic Law has the effect of restricting eligible citizens from exercising their right to vote and stand for elective public office to the provincial legislature. Counsels for the respondents have submitted that Section 10 of the Organic Law does not prohibit or indeed deny a citizen his or her right to stand for and be eligible for elective public office. They submit that Section 50 of the Constitution is not concerned with whether a person should be directly elected to a provincial legislature or not. They contend that Section 50 of the Constitution assumes that an elective office is already in existence and thus confers a substantive right to citizens to vote for and stand for elective public office.

I would accept the submissions put by the counsel for the respondents. I do not accept the submissions put by the referee. The reasons is quite clear. I consider that Section 10 of the Organic Law does not prohibit a eligible citizen to stand for elective public office and or vote in a elective public office. An eligible citizen can do that and can meaningfully participate in such an election process either by contesting a seat at the local level government elections or he or she can stand for and vote for in a general elections for the National Parliament. I am of the view that Section 10 of the Organic Law does not prohibit an eligible citizen from holding public elective office and from being given a reasonable opportunity to secure such an office through the election process.

QUESTION 5 (C)

The next submission by the Referee is whether Section 10 of the Organic Law is invalid in that it is not expressly authorised by Section 12 (1) (a) of the Constitution. Mr Naru submits that Section 10 of the Organic Law does not meet the requirements of Section 12 (1) (a) of the Constitution as it has not been expressly authorised by Section 187C (2) (a) of the Constitution. Section 12 of the Constitution is set out in Division 2 (Constitutional Laws) Subdivision A - (Supreme Law) of the Constitution. Section 12 of the Constitution reads:

“12. Organic Laws

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

(a) for or in respect of a matter provision for which by way of Organic Law is expressly authorised by this Constitution; and

(b) not in consistent with this Constitution; and

(c) expressed to be an Organic Law.

(2) An Organic Law may be altered only by another Organic Law, or by an alteration to this Constitution.

(3) Nothing in this section prevents an Organic Law from:

(a) making any provision that might be made by an act of Parliament; or

(b) requiring any provision to be made by an act of Parliament that might otherwise be so made, but any such provision may be altered by the same majority that is required for any act of the Parliament.”

Mr Naru submits that as Section 10 of the Organic Law has not been expressly authorised by Section 12 (1) (a) of the Constitution. Mr Naru submits that s 10 of the Organic Law is not a matter, provision for which by way of an Organic Law is expressedly authorised by this Constitution. In my view, this submission is misconceived.

In my view, s. 12 (1) (a) of the Constitution says that for the purposes of the Constitution, an organic law is law made by Parliament for or in respect of a matter, provision for which by way of an organic law is expressly authorised by this Constitution.

I am of the view that s. 187B and s. 187C of the Constitution quite clearly authorises the enactment of the Organic Law on Provincial Governments and Local-level Governments. Section 187B provides for an Organic Law, to provide for the establishment of Provincial Governments and Local-level Governments. And s. 187C provides for the manner and form of Provincial Governments and Local-level Governments.

In the present case, I am of the view that s. 187B and s. 187C of the Constitution are the enabling Constitutional Provisions, which provisions expressly authorise for an Organic Law to be enacted to establish Provincial Governments and Local-level Governments.

It follows, that in my view s. 10 of the Organic Law is not inconsistent with s. 12 (1) (a) of the Constitution.

For the reasons that I have given, I will answer the questions referred as follows:

Question 5 (a): No.

Question 5 (b): No.

Question 5 (c): No.

Question 5 (d): Not necessary to answer.