In the Matter of Section 18(1) of the Constitution and in the Matter of Jim Kas, Governor of Madang Province [2001] PGSC 15; SC670 (28 June 2001)

SC670

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE IN WAIGANI]

SCR No. 01 of 2001

IN THE MATTER OF SECTION 18(1) OF THE CONSTITUTION
OF PAPUA NEW GUINEA

AND IN THE MATTER OF JIM KAS, GOVERNOR,
MADANG PROVINCE

Waigani: Kapi DCJ, Sheehan J and Salika J.
2001: 28th June

CONSTITUTIONAL LAW – Whether a person may file a "reference" directly in the Supreme Court under Constitution, s 18 (1) – A Person may directly invoke the original jurisdiction of Supreme Court under s 18 (1) by appropriate cause of action under the Law.

Counsel:
B. Andrew for Applicant
D. Lambu for the State

BY THE COURT: Mr. Jim Kas filed this proceeding by way of a reference under s 18(1) of the Constitution on 11th January 2001. At the hearing, the question arose, whether, Mr. Kas could institute the cause of action directly in the Supreme Court by way of a reference under s 18(1) of the Constitution?

The Court expressed the desire at the outset that if parties could agree to convert or substitute the present proceeding with the appropriate originating process, we would be prepared to deal with the substantive constitutional issues. We adjourned this matter to the afternoon to enable parties to resolve this issue. However, the parties were unable to agree to such a cause and elected to argue the preliminary issue. After hearing oral arguments, we dismissed the reference with costs to the respondents with reasons to be published later. This we now do.

Counsel for Mr. Kas submitted that the preliminary issue was raised and determined by the Supreme Court in the Matter of Hon. Anderson Agiru MP (Unreported Judgment of the Supreme Court dated 21st December 2000) (Agiru Case) and therefore this reference is validly before the Court. On the other hand, counsel for the State and the Provincial Assembly both submitted that the Supreme Court in the Agiru Case misunderstood and erroneously applied the principle in the Matter of Petition of the Rt. Hon. Michael Somare [1982] PNGLR 65 (Somare Petition) and therefore we should not follow it. They submitted that there is no provision for reference under s 18(1) of the Constitution and urged the Court to dismiss the proceeding.

The Hon. Anderson Agiru MP the Governor of Southern Highlands Province filed a reference under s 18(1). Apart from other preliminary issues raised, the State argued that the Governor could not come directly to the Supreme Court by way of a reference under s 18(1). The Court at page 3 held:

"Another threshold issue raised by the Court itself was as to whether a s. 18(1) reference is able to come directly to the Court. We are satisfied that, on the authority of the Supreme Court Reference No. 4 of 1980 (No.2) In the Matter of a Petition by Rt. Hon. Michael Somare under s 18(1) of the Constitution [1982] PNGLR 65, an interested leader or a private citizen may apply directly to the Supreme Court pursuant to s 18(1). The Reference is therefore validly before the Court."

The decision in the Agiru Case was based on the authority of the Somare Case (supra). We have studied this decision, and with respect, we are unable to agree that this case supports the proposition relied on in the Agiru Case. First, the decision relied upon by the Supreme Court dealt with the substantive issues in respect of the constitutional validity of Defence Force (Presence Abroad) Act 1980 and is of no relevance to the preliminary issue. The appropriate decision is the reference made to the Supreme Court by the National Court under s 18(2) of the Constitution [1981] PNGLR 265. The head note states:

"...The Leader of the Opposition in the National Parliament, as a citizen, has standing to invoke the powers of the Supreme Court under s 18(1) of the Constitution to determine whether an Act of Parliament (The Defence Force (Presence Abroad) Act 1980) is invalid as being unconstitutional."

Counsel for Mr. Kas relied on this head note and submitted that it supports the proposition relied on in the Agiru Case (supra). The head note should be understood within the context of the questions referred. The Rt. Hon. Michael Somare, Leader of the Opposition, filed a petition in the National Court seeking to rule on the constitutionality or otherwise of the decision by the Parliament (a) for approving the commitment of the troops to Vanuatu (b) for enacting the Defence Force (Presence Abroad) Act 1980. The details of this proceeding are reported in [1980] PNGLR 255. The National Court then referred the matter to the Supreme Court under s 18(2) of the Constitution on two questions:

1. Does the petitioner have sufficient legal standing to present to the National Court the petition filed herein?
2. If "yes" to the above, are not the rulings sought in the petition matters solely for the Supreme Court?
   

The majority (3-2) answered the first question in the positive. That was essentially a question of whether Somare had sufficient interest (locus standi) to bring the petition before the National Court. No such issue has been raised about the legal standing of Mr. Kas in the present case.

On the second question, the majority (Graville-Smith J. dissenting) held that the constitutional issues raised were matters which were solely within the jurisdiction of the Supreme Court and held that it should deal with the merits of the petition. Miles J. expressed the true nature of the decision ([1981] PNGLR 265 at 313):

"Generally however and subject to the Constitution, s 18(2) has application and whatever a constitutional question in any court or tribunal, that court or tribunal shall, unless the question is trivial vexatious or irrelevant, refer the matter to the Supreme Court. Now that the matter is in the Supreme Court there is little point in referring it back to the National Court. The only issue remaining, namely the constitutional validity of the Defence Force (Presence Abroad) Act 1980, will have to be decided in the Supreme Court."

Essentially, the Somare Case came before the Supreme Court as a reference by the National Court under s 18(2) of the Constitution. The Supreme Court simply transferred the petition in the National Court before it and dealt with it. It does not support the proposition that a party may come directly to the Supreme Court by way of reference under s 18(1). We conclude from this that reliance on the Somare Case by the Supreme Court in Agiru’s Case was erroneous and therefore we would not follow it.

The Constitution prescribes a procedure known as "reference" whereby a matter of interpretation or an application of a constitutional law may be referred to the Supreme Court for determination. The Constitution prescribes two types of "reference" for seeking the opinion of the Supreme Court on issues of interpretation or an application of a constitutional law. The first is set out in s 18 (2) of the Constitution. This provision envisages a proceeding before a court or a tribunal. If a question of interpretation or application of a constitutional law arises, the court or the tribunal may stay its proceedings and refer the questions involving the interpretation and application of a constitutional law to the Supreme Court for determination (The Somare Case). In the present case, a court or a tribunal has not referred the constitutional issues. Therefore, it cannot come within s 18 (2).

Second, an authority prescribed under s 19 of the Constitution may make special reference on any question relating to the interpretation or application of any provision of a constitutional law, including any question as to the validity of a law or a proposed law. The Provincial Executive of the Madang Provincial Government could have filed a special reference under s 19 (3) (eb) of the Constitution. The Governor is not authorized to make a reference under s 19.

Section 18(1) grants the exclusive and original jurisdiction of interpreting and applying constitutional laws to the Supreme Court. It does not deal with the procedure for invoking that jurisdiction. That is the subject of s 18(2) and s 19 of the Constitution. There is no provision for a reference under s 18(1).

The original jurisdiction of the Supreme Court under s 18(1) may also be invoked directly by instituting appropriate cause of action in law. As we have already pointed out, a party may seek declaratory orders by originating summons (Kaseng v Namaliu [1995] PNGLR 481, The Honourable John Momis & The Bougainville Provincial Government in Suspension v. The National Executive Council & The Right Honourable Bill Skate, Prime Minister (SC O.S. 1 of 1999) (Unreported judgment of the Supreme Court dated 26 November 1999, SC626)). We invited the parties to do this at the outset but failed to take up the invitation.

Therefore the reference before us is not valid and for these reasons we dismissed it and discharged the interlocutory injunction imposed on 29th January 2001.
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Lawyers for the Appellant : Maladinas
Lawyers for the State : Solicitor-General